ABSTRAKPenelitian ini bertujuan untuk mengetahui pengaruh karakteristik Islamic corporate governance terhadap kinerja bank syariah di Indonesia dan Malaysia. Dengan menggunakan regresi data panel 28 bank syariah di Indonesia dan Malaysia periode 2013-2019, penelitian ini menemukan adanya pengaruh Islamic corporate governance (ICG) secara simultan terhadap kinerja bank syariah. Hasil estimasi dengan dan tanpa variabel kontrol menunjukkan hanya variabel tingkat pendidikan Dewan Pengawas Syariah (DPS) yang konsisten memiliki pengaruh negatif signifikan terhadap kinerja bank syariah. Dengan menambahkan variabel kontrol, hasil penelitian menunjukkan bahwa variabel gender diversity dan frekuensi rapat DPS masing-masing berpengaruh positif dan negatif terhadap kinerja bank syariah. Hasil penelitian ini memberikan wawasan bagi regulator untuk dapat meningkatkan kinerja bank syariah melalui praktik ICG. Kata Kunci: Bank syariah, Dewan Pengawas Syariah, Indonesia, Islamic corporate governance, Kinerja bank, Malaysia. ABSTRACTThis study aims to determine the impact of Islamic corporate governance characteristics on the performance of Islamic banks in Indonesia and Malaysia. By using panel data regression of 28 Islamic banks in Indonesia and Malaysia for the 2013-2019 period, this study found the simultaneous influence of Islamic corporate governance (ICG) characteristics on the performance of Islamic banks. The results with and without control variables show that only the Sharia Supervisory Board (SSB) education level consistently has a significant negative effect on the performance of Islamic banks. By adding the control variable, the results show that the gender diversity variable and the frequency of SSB meetings have a positive and negative effect on the performance of Islamic banks, respectively. The results of this study provide insights for regulators to improve the performance of Islamic banks through ICG practices.Keywords: Bank performance, Indonesia, Islamic corporate governance, Islamic banks, Malaysia, Syariah Supervisory Board. DAFTAR PUSTAKAAgrawal, N., & Lakshmi, V. (2020). Board composition and board size impact on financial performance of the company. International Journal of Public Sector Performance Management, 6(5), 737–747. https://doi.org/10.1504/IJPSPM.2020.110142Ajili, H., & Bouri, A. (2018). Corporate governance quality of Islamic banks: measurement and effect on financial performance. International Journal of Islamic and Middle Eastern Finance and Management, 11(3), 470–487. https://doi.org/10.1108/IMEFM-05-2017-0131Alam, N., & Homy, A. (2020). The impact of corporate governance and agency effect on earnings management – A test of the dual banking system. Research in International Business and Finance, 54(April), 1–16.Al-Jaifi, H. A. (2020). Board gender diversity and environmental, social and corporate governance performance: evidence from ASEAN banks. Asia-Pacific Journal of Business Administration, 12(3–4), 269–281. https://doi.org/10.1108/APJBA-12-2018-0222Alsartawi, A. M. (2019). Performance of Islamic banks: Do the frequency of shariʿah supervisory board meetings and independence matter?. ISRA International Journal of Islamic Finance, 11(2), 303–321. https://doi.org/10.1108/IJIF-05-2018-0054Aslam, E., & Haron, R. (2020). Does corporate governance affect the performance of Islamic banks? New insight into Islamic countries. Corporate Governance, 20(6), 1073–1090. https://doi.org/10.1108/CG-11-2019-0350Baklouti, I. (2020). Is the sharia supervisory board a friend or an enemy of Islamic banks? Journal of Islamic Marketing. https://doi.org/10.1108/JIMA-04-2020-0118Baltagi, B. H. (2005). Econometric analysis of panel data, 3rd ed. New York: John Wiley & Sons.Bank Negara Malaysia. (2013). Guidelines on corporate governance for licensed institutions - BNM/RH/GL 001-1. Diakses dari https://www.bnm.gov.my/documents/20124/761709/20130619_B_PL_0014.pdfBank Negara Malaysia. (2016). Policy document on corporate governance - BNM/RH/PD 029-9. Diakses dari https://www.bnm.gov.my/documents/20124/65319/pd_CorporateGovernance_Aug2016.pdfBouteska, A. (2020). Do board characteristics affect bank performance? Evidence from the Eurozone. Journal of Asset Management, 21(6), 535–548. https://doi.org/10.1057/s41260-020-00181-2Buallay, A. (2019). Corporate governance, shari'ah governance and performance. International Journal of Islamic and Middle Eastern Finance and Management, 12(2), 216–235. https://doi.org/10.1108/IMEFM-07-2017-0172Choudhury, M. A. (2013). Corporate governance in Islamic perspective. International Journal of Islamic and Middle Eastern Finance and Management, 6(3), 180–199. https://doi.org/10.1108/IMEFM-10-2012-0101Darwanto, C. A. (2019). Corporate governance and financial performance in Islamic banks: The role of the sharia supervisory board in multiple-layer management. Banks and Bank Systems, 14(4), 183–191.De Haan, J., & Vlahu, R. (2016). Corporate governance of banks: A survey. Journal ofEconomic Surveys, 30(2), 228–277. https://doi.org/10.1111/joes.12101.Farag, H., Mallin, C., & Ow-yong, K. (2018). Corporate governance in Islamic banks: New insights for dual board structure and agency relationships. Journal of International Financial Markets, Institutions & Money, 54, 59–77.Fuzi, S. F. S., Halim, S. A. A., & Julizaerma, M. K. (2016). Board independence and firm performance. Procedia Economics and Finance, 37(16), 460–465. https://doi.org/10.1016/s2212-5671(16)30152-6Hakimi, A., Rachdi, H., Rim, B. S. M., & Hssini, H. (2018). Do board characteristics affect bank performance? Evidence from the Bahrain Islamic banks. Journal of Islamic Accounting and Business Research, 9(2), 251–272. https://doi.org/10.1108/JIABR-06-2015-0029Peraturan Bank Indonesia Nomor 11/33 Tahun 2009.Isa, M., & Lee, S. P. (2020). Does the shariah committee influence risk-taking and performance of Islamic banks in Malaysia? Journal of Islamic Accounting and Business Research, 11(9), 1739–1755. https://doi.org/10.1108/JIABR-12-2018-0207Iskandar, B. A., & Laila, N. (2016). Pengaruh komponen risk-based bank rating terhadap profitabilitas bank umum syariah di Indonesia (Periode 2011–2014). Jurnal Ekonomi Syariah Teori dan Terapan, 3(3), 173–186Islamic Financial Services Board. (2009). Guiding principles on shariah governance systems for institutions offering Islamic financial services. Diakses dari https://ifsb.org/download.php?id=4366&lang=English&pg=/published.phpJungmann, C. (2006). The effectiveness of corporate governance in one-tier and two-tier board systems: Evidence from the UK and Germany. European Company and Financial Law Review, 3(4). https://doi.org/10.1515/ecfr.2006.019Khalil, A., & Boulila, T. N. (2020). The impact of the shariah board's characteristics on the financial soundness of Islamic banks. Journal of Islamic Accounting and Business Research. https://doi.org/10.1108/JIABR-08-2018-0127Khan, I., & Zahid, S. N. (2020). The impact of shari'ah and corporate governance on Islamic banks performance: evidence from Asia. International Journal of Islamic and Middle Eastern Finance and Management, 13(3), 483–501. https://doi.org/10.1108/IMEFM-01-2019-0003Lassoued, M. (2018). Corporate governance and financial stability in Islamic banking. Managerial Finance, 44(5), 524–539. https://doi.org/10.1108/MF-12-2016-0370Mansour, W., & Bhatti, M. I. (2018). The new paradigm of Islamic corporate governance. Managerial Finance, 44(5), 513-523. https://doi.org/10.1108/MF-01-2018-0043Mayur, M., & Saravanan, P. (2017). Performance implications of board size, composition and activity: Empirical evidence from the Indian banking sector. Corporate Governance (Bingley), 17(3), 466–489. https://doi.org/10.1108/CG-03-2016-0058Mazzotta, R., & Ferraro, O. (2020). Does the gender quota law affect bank performances? Evidence from Italy. Corporate Governance (Bingley), 20(6), 1135–1158. https://doi.org/10.1108/CG-08-2019-0252Meslier, C., Risfandy, T., & Tarazi, A. (2020). Islamic banks equity financing, shariah supervisory board, and banking environments. Pacific-Basin Finance Journal, 62. https://doi.org/https://doi.org/10.1016/j.pacfin.2020.101354Mishra, S. (2020). Do independent directors improve firm performance? Evidence from India. Global Business Review, 1-19. https://doi.org/10.1177/0972150920917310Mollah, S., Hassan, M. K., Al Farooque, O., & Mobarek, A. (2017). The governance, risk-taking, and performance of Islamic banks. Journal of Financial Services Research, 51, 195–219. https://doi.org/10.1007/s10693-016-0245-2Mollah, S., & Zaman, M. (2015). Shari'ah supervision, corporate governance and performance: Conventional vs Islamic banks. Journal of Banking & Finance, 58, 418–435. https://doi.org/10.1016/j.jbankfin.2015.04.030Moundigbaye, M., Rea, W. S., & Reed, W. R. (2018). Which panel data estimator should I use? Economics: The Open-Access, Open-Assessment E-Journal, 12(4). https://doi.org/10.1080/00036840802600087Nomran, N. M., & Haron, R. (2019). Dual board governance structure and multi-bank performance: A comparative analysis between Islamic banks in Southeast Asia and GCC countries. Corporate Governance (Bingley), 19(6), 1377–1402. https://doi.org/10.1108/CG-10-2018-0329Nomran, N. M., & Haron, R. (2020a). Shari'ah supervisory board's size impact on performance in the Islamic banking industry: An empirical investigation of the optimal board. Journal of Islamic Accounting and Business Research, 11(1), 110–129. https://doi.org/10.1108/JIABR-05-2017-0070Nomran, N. M., & Haron, R. (2020b). A systematic literature review on Shari'ah governance mechanism and firm performance in Islamic banking. Islamic Economic Studies, 27(2), 91–123. https://doi.org/10.1108/IES-06-2019-0013Nomran, N. M., Haron, R., & Hassan, R. (2018). Shari'ah supervisory board characteristics effects on Islamic banks' performance: Evidence from Malaysia. International Journal of Bank Marketing, 36(2), 290–304. https://doi.org/10.1108/IJBM-12-2016-0197Nurkhin, A., Rohman, A., & Rofiq, A. (2018). The role of the sharia supervisory board and corporate governance mechanisms in enhancing Islamic performance – evidence from Indonesia. Banks and Bank Systems, 13(4), 85–95. https://doi.org/10.21511/bbs.13(4).2018.08OJK. (2014). Surat Edaran Otoritas Jasa Keuangan Nomor 10/SEOJK.03/2014.OJK. (2014). Peraturan Otoritas Jasa Keuangan No. 33/PJOK.04/2014.Permatasari, I. (2020). Does corporate governance affect bank risk management? Case study of Indonesian banks. International Trade, Politics and Development. https://doi.org/10.1108/itpd-05-2020-0063Safieddine, A. (2009). Islamic financial institutions and corporate governance: New insights for agency theory. Corporate Governance: An International Review, 17(2), 142–158. https://doi.org/10.1111/j.1467-8683.2009.00729.xSafiullah, M. D., Hassan, M. K., & Kabir, M. N. (2020). Corporate governance and liquidity creation nexus in Islamic banks—Is managerial ability a channel?. Global Finance Journal, In Press, Corrected Proof. https://doi.org/10.1016/j.gfj.2020.100543Sugiyono. (2019). Metode penelitian kuantitatif, kualitatif dan R&D. Bandung: CV. Alfabeta.Trinh, V. Q., Elnahass, M., Salama, A., & Izzeldin, M. (2019). Board busyness, performance and financial stability: Does bank type matter? European Journal of Finance, 26(7–8), 774–801. https://doi.org/10.1080/1351847X.2019.1636842Wooldridge, J. M. (2010). Econometric analysis of cross section and panel data, 2nd ed. Cambridge, Massachusetts: The MIT Press.Zeineb, G. B., & Mensi, S. (2018). Corporate governance, risk and efficiency: Evidence from GCC Islamic banks. Managerial Finance, 44(5), 551–569. https://doi.org/10.1108/MF-05-2017-0
Dalam membantu masyarakat yang terdampak akibat dari pandemi wabah Covid-19, Baznas melakukan operasi pengelolaan ZIS dengan strategi penghimpunan dan penyaluran ZIS dalam bentuk program penyaluran Sembako untuk masyarakat yang terdampak langsung pandemi Covid-19. Tujuan penelitian yaitu Untuk mengetahui Strategi Penghimpunan ZIS Dan Penyaluran ZIS Dalam Program Sebar Sembako Pada Masa Pandemi Covid-19 di Baznas Provinsi Bali. Metode penelitian ini dengan kualitatif deskriptif. Informan 10 orang yang dipilih dengan menggunakan teknik purposive. Pengumpulan data melalui observasi, wawancara dan dokumentasi. Sedangkan teknik analisis data menggunakan reduksi data, penyajian data, penyimpulan dan verifikasi serta kesimpulan akhir. Hasil penelitian menunjukkan bahwa: (1) Strategi penghimpunan ZIS oleh Baznas meliputi Sosialisasi kepada Instansi pemerintah tingkat I, lembaga keuangan, dan majelis ta'lim, mengirimkan laporan pertanggung jawaban keuangan, mempromosikan program melalui tiga media yaitu media cetak, media sosial, dan media elektronik, memberi pelayanan pembayaran ZIS dengan cara pembayaran langsung, jemput zakat, membentuk UPZ di lembaga pemrintahan dan swasta, membuka rekening di beberapa Bank, scan barcode dan menjalin hubungan yang baik dengan muzaki/donatur, (2) Strategi penyaluran ZIS meliputi kepatuhan terhadap ketentuan syariah dan sesuai dengan UU, mengikuti protokol penanganan Covid-19 dengan physical distancing, social distancing, dan penggunaan masker, pendekatan penyaluran antara push approach dan pull approach, memberikan surat tembusan kepada gugus tugas Covid-19. ABSTRACTIn assisting the affected communities as a result of the Covid-19 pandemic, Baznas carried out ZIS management operations with a ZIS collection and distribution strategy in the form of a basic food distribution program for people directly affected by the Covid-19 pandemic. The purpose of this research is to find out the strategy of ZIS Collection and Distribution of ZIS in the Distribution of Grocery Programs during the Covid-19 Pandemic Period in the Bali Provincial Baznas. This research method uses descriptive qualitative method. 10 informants were selected using a purposive technique. Data collection through observation, interviews and documentation. While data analysis techniques use data reduction, data presentation, inference and verification as well as final conclusions. The results of the research show that: (1) ZIS collection strategies by Baznas include socialization to government level I institutions, financial institutions, and majelis ta "lim, sending financial accountability reports, promoting programs through three media namely print media, social media, and media electronic, providing ZIS payment services by direct payment, picking up zakat, forming UPZ in government and private institutions, opening accounts in several banks, scanning barcodes and establishing good relationships with muzaki / donors, (2) ZIS distribution strategies include compliance with regulations sharia and in accordance with the law, following the Covid-19 handling protocol with physical distancing, social distancing, and the use of masks, the distribution approach between push approach and pull approach, giving a copy to Covid-19 task force.
Summary of the Study Introduction Sudan is the third largest country on the African continent with a total area of 1,882,000 sq km. before the secession of South Sudan in 2011; Sudan was the largest country in Africa, covering I million square miles. Sudan is unique and complex in its climate, politics, environment, languages, cultures, religion and ethnicities. Demographically, Africans are the majority (52%), with Arab and Beja tribes constituting 38% and 6% of the population, respectively. Over 597 tribes live in Sudan that speak more than 400 dialects and practice different religions, live in Sudan. Muslims make up 70% of the total population of Sudan, followers of indigenous beliefs comprise 25% and Christians constitute 5% of the population. The complex mixture of the Sudanese social fabric renders it neither distinctly African nor Arab country. The Sudanese, however, have long disagreed about Sudan's identity. For some, Sudan should be Arab and Muslim. Other believe that the country should respect and accommodate all the cultures, religions and minorities within its territory. Most of Sudan constitutions stated that Islam and Arabic language should define the national identity. Politically, since the independence, Sudan has experienced a fluctuation between military rule and democratic rule. In fact, Sudan spent thirty years under the military rule, and only twelve years under democratically elected governments. The successive governments have frequently made use of emergency legislation to broaden the executive powers. These legislative measures have contributed to conflict and facilitated a range of human rights violations. In addition to the political instability, Sudan has the distinction in Africa in enduring a devastating civil war: that is: Sudan's north-south civil war. The conflict started just a year before the independence of Sudan, in 1956. The cumulative impact of that conflict has been massive. The conflict has caused horrendous loss of life in any interstate war, and has produced the largest internally displaced population (IDP) in the world. Sudan north-south conflict has long been perceived as ethnic or even religious conflict between the north and the south. Ethnicity has been used generously in the description of that conflict. Yet, a closer look at the history of the conflict reveals that the root-causes of that conflict are highly complex. But, this is by no means to say that conflict has had no ethnic, racial and religious overtones. The eruption of the north-south conflict was the result of a combination of factors. One could trace the root-causes of the conflict to the invasion of the south from the north by Turkiyya that expanded southwards, and the simultaneous development of slave trade. Thereafter, the British rule contributed in different ways to the crystallizing of the north-south dichotomy. After the independence of Sudan, successive governments, were unsuccessful in handling the growing southern problem, ranging from neglect to attempts to reverse the British isolation by enforced Arabisation and Islamization of the southern Sudan. The north-south conflict ended, in 1972, when Addis Ababa Agreement was signed by then President Nimeiry. But, the conflict broke out again, in 1983, when the Addis Ababa Agreement was abrogated by the then President Nimeiry. After a series of peace talks (which witnessed 'start and stop'), a Comprehensive Peace Agreement (CPA) was concluded, in 9 January 2005, between the Government of Sudan (GoS) and the Southern Sudan People's Liberation Movement (SPLM/SPLA) to end the conflict. The CPA provides for a temporary solution for the conflict through, inter alia, the distribution of the power between the north and the south of Sudan by establishing a decentralised system of government with a significant devolution of powers within which the Southern Sudan is to enjoy a regional autonomy and share half of the resources with north Sudan for a period of six years. Furthermore, the CPA creates joint institutions, such as, the Government of the National Unity (GoNU) in which the Southern Sudan participate and share ministerial posts. The CPA also provides for the establishment of a number of commissions for implementing and monitoring the CPA, for instance, the Evaluation and Monitoring Commission, the National Human Rights Commission, etc. At the end of the interim period, a referendum on the self-determination is to be held, in 2011, in which the people of the Southern Sudan will decide whether to remain within a united Sudan or to secede and form an independent State. The Aim of the Study The significance of this study derives from the conclusion of the CPA and the adoption of the Interim National Constitution (INC) that called for democratic transformation so as to bring an end to Sudan north-south conflict. While the CPA ended Sudan's north-south conflict, a lasting peace and a democratic transformation, in Sudan, may prove elusive unless the CPA provisions are translated into reality, especially the implementation of constitutional, legislative and institutional reforms, including human rights protection and respect for the rule of law. The study aims to answer whether the CPA and INC can fulfil their roles in securing peace and establishing a framework in which the constitutional protection of human rights are recognised and effectively implemented through the availability of the various mechanisms. In this respect, the CPA provided for the adoption of a new constitution (INC), with a view to embedding constitutionalism, rule of law promotion, and protection of human rights. It is, therefore, this study is meant to analyze the constitutional, legislative and institutional reforms of the CPA and INC with a view to examining whether such constitutional reforms may be conducive for a lasting peace, in Sudan, that is based on human rights protection, constitutionalism and the rule of law. The CPA stipulated the need for institutional and legislative changes to reduce the risk of recurrence of human rights violations. To this end, the CPA mandated the adoption of a bill of right (for the promotion and protection of human rights) and provided for re-restructuring of the courts system. Such institutional reforms are aimed at embedding constitutionalism. That is to say: establishing a system in which the constitution provides an agreed upon framework for the exercise of powers and the protection of human rights. In this respect, the study examines whether the outcome of the constitutional reforms process (to recognise, implement, and protect human rights as provided for in the INC) have been reflected in institutional and legislative reforms to protect and prevent human rights violations and address past violations and systemic factors that have contributed to violations. To that end, the human right jurisprudence of the constitutional court will be examined. The Organization of the Study a) The Structure of the Political/Governance System in Sudan under the INC With the devolution of the powers and resources to the Southern Sudan level and other States, the governance system, under the INC, is structured with four levels of government: the national level at the apex, the Government of South Sudan level, the State level (25 States), the local level. Now, the government responsibilities are decentralized and the national government allocates a significant proportion of revenues to the States. It is, therefore, that the first question that this study poses is: What is the impact of the current governance in giving greater equity of representation and decision-making influence to communities across Sudan, thereby facilitating conflict management to achieve a lasting peace in Sudan? In Sudan, previously appropriate design of institutions to ensure political accommodations for all social groups has not been established in a way that would give them the chance to function properly. Now, the INC restructures the prevailing governance system by establishing a decentralized system of government that bears the characteristics of asymmetrical/symmetrical federalism - asymmetrical in the structure and responsibilities of subunits, with the level of South Sudan having more powers and resources than other States across Sudan. Establishment of a federal structure may constitute a mechanism for preventing a relapse into conflict through the devolution of the powers to the State level. For a federal to work effectively, it requires a functional court system to decide on the jurisdictional limits of the different levels of government. Nevertheless, the relevance of the court system in resolving the intractably political contentions in federal countries, especially in transition situations, is uncertain. Noticeably missing from the literature is the study and analysis of the impact of the role of court system in post conflict countries. That said, the role of the court system in preserving democracy has grown in importance with the increase recognition of the judicial review of the constitutionality of the acts of the government organs and the recognition and the protection of human rights provisions. It is, therefore, that the involvement of the courts is necessary to ensure the successful operation of the federalism and thus the failure or the success of federalism is contingent on the implementation of the federal system by the courts. According to some scholars, 'federalism means legalism – the predominance of the judiciary in the constitution- the prevalence of a spirit of legality among the people'. As '[the] courts …are actually telling a government how far it can go with its assigned constitutional rights'. This leads to the second question that this study addresses which relates to the analysis of the constitutional reform as provided for in the INC, in general, but with a special focus on the role of the court system, through the application of judicial review and protection of human rights, to resolve not only disputes in litigations between private parties, but also to prevent the arbitrary exercise of the government power. b) The Structure of the Legal System (Court System) in Sudan under the INC The available literature presents different views as to the role of the court system in new democracies. On one hand, one view assumes that the courts have a fairly wide discretion to decide the outcome of the controversial cases to the needs of the political moment. The other view, on the other hand, takes the position that political actors do not exert any kind of influence at all on the way judges make their decisions. A third source, and with which I agree, argues that legal rules do put constrains over the exercise of the judicial discretion in controversial cases. A fourth view argues that in new fragile democracies constitutional courts/supreme courts should not be involved in judicial review, especially on adjudicating issues related to social and economic rights, which may profoundly affect the allocations of resources and violate the doctrine of separation of powers. In this respect, the study considers whether the court system, as restructured in the INC, and other constitutional guarantees introduced to the legal system as a whole, offer good prospects for constitutionalism that may control the power of the government so as not act arbitrarily. The role of court system in resolving disputes is highly contingent on the substantive law and the institutional structure within which the courts apply laws. Thus, this study examines to what extent the current structure of the legal system under the INC and the protection of human rights through the application of the Bill of Rights by the courts may signal the State's commitment to constitutionalism and respect to the rule of law. It is, therefore, that the role of the court system (in contributing to democratic transformation in Sudan) should be evaluated against the legal framework: that is the INC, with a focus on the independence of the judiciary, the application of the Bill of Rights and the rules governing the judicial review. c) The Legislative and Institutional Reforms under the INC The functions of the courts, in developing countries, have experienced increasingly transformative role as institutions that can hold the government organs accountable. The study aims to examine the practice of constitutionalism: that is, the implementation of the INC constitutional, institutional and legislative reforms, especially the compliance with the provisions of the INC and the CPA, in particular the role of the constitutional court as "a positive legislator". In this regard, the Sudanese Constitutional Court may play an important role in the law reform process given its power to annul laws found unconstitutional. This entails the non-applicability of such laws and, as a result, would compel the government institution/organ concerned to adopt new legislation that is in conformity with the INC. Thus far, the Sudanese constitutional court, under the INC, has received a number of human rights cases that involved issues related to violations of human rights or related to the constitutionality of key legislation, such as counter-terrorism laws, immunities for officials and statutes of limitation for torture. So what role the constitutional court has played in the law reform process under the INC? For the court system to play a role in the democratic reform, a comprehensive law reform process is seen as a prerequisite to bring the existing laws in line with the provisions of the INC and enacting new laws. Therefore, this study identifies what legislative and institutional reforms that have been undertaken by the parties to the CPA during the interim period to address human rights violations, root-causes of the conflict; inequality; marginalization, rule of law vacuum and weak democratic structures. Furthermore, this study offers empirical evidence for the judicial behavior of the Sudanese constitutional court through a systematic examination of selected human rights jurisprudence of the constitutional court to gauge its role in the law reform process in Sudan since the adoption of the INC. Overview of the Study and the Main Findings of the Study Introductory Chapter: Overview of the Study The Introductory Chapter provides an overview of the study, including, the key features of the State of Sudan, the aim of the study, the main objectives of the study, and a general overview of the study. Chapter One: A Historical Background of Sudan's North-South Conflict Chapter One gives a rich and deep account of Sudan north-south conflict. It looks at the root-causes of the conflict by elaborating on different factors that directly and indirectly contributed in making that conflict protracted. Chapter one moves on to consider the end of the first Sudan's north-south conflict which was ended when Addis Ababa Agreement was signed in 1972. Chapter one further elaborates on Sudan's second north-south conflict which broke out in 1983. Finally, Chapter one touches on the various peace initiatives that ended by the conclusion of the CPA. Chapter One concludes by analysing the CPA. In the final analysis, the CPA made significant changes the prevailing governance and legal systems in Sudan by establishing a federal system, introduced a dual legal system a bill of rights, provided for the right to self-determination for the south Sudan, established institutions for the protection of human rights by establishing mechanisms such as National Human rights Commission, and distributed the wealth equally between the north and the south. However, the CPA failed to include the Sudanese people in the talks leading to the conclusion of the CPA, as the CPA was bilateral reflecting the views of the north and the south. Chapter Two: The Structure of the Governance System under the INC The INC describes Sudan as a decentralized State with different levels of government: the national level, the Southern Sudan level, the State level and the local level. It further grants the Southern Sudan autonomy status. A careful analysis of the current governance arrangements reveals that the INC provides for asymmetric/symmetrical federalism system of governance. Chapter Two discusses the allocation of legislative powers between the national government, the Southern Sudan and the rest of the country and the nature of the constitutional design of the INC to manage diversity of Sudan (ethnic, linguistic, religious and cultural diversity). At the outset of Chapter Three provides an overview the fundamental principles of federalism and provides a brief historical background of federalism in Sudan and how federalism arrangements can play a role as a tool for peace-building. In the final analysis, in contract with old constitutions of Sudan, the INC establishes a federal system, with four levels of government; national, south Sudan, State and local levels. The INC federal system guarantees the special characteristics of all ethnic and religious groups in Sudan through the creation of the Council of the States. However, all the States in Sudan are not treated equally, because (1) two States have special status (South Kordofan and Blue Nile States), and (2) between the ten States in the South and the national level, the Government of South Sudan (GoSS) is inserted to exercise authority in respect of the ten States at South Sudan level. This means the INC creates asymmetrical/symmetrical federalism, as the South Sudan level enjoys significant autonomy and exclusive authority over ten States in South Sudan. All the States in Sudan are not treated equally, because (1) two States have special status (South Kordofan and Blue Nile States), and (2) between the ten States in the South and the national level, the Government of South Sudan (GoSS) is inserted to exercise authority in respect of the ten States at South Sudan level. This means the INC creates asymmetrical/symmetrical federalism, as the South Sudan level enjoys significant autonomy and exclusive authority over ten States in South Sudan. The INC Schedules (A – C) distribute the exclusive and legislative powers to the national level (A), the GoSS level (B), and the state level (C). Schedule (D) lists the concurrent powers and Schedule (E) allocates the residual powers as per its nature. Schedule (F) is a provision to resolve conflict that might arise under Schedule (D). It should be noted that not all issues listed in the INC schedules are allocated to one level of government only. For example, several substantive issues are granted to the national level as an exclusive competence, to the South Sudan level as an exclusive competence and at the same time to all levels of government as a concurrent power, such as telecommunication. With regard to the legislative powers allocated to the tens states at the South level, the GoSS according to Schedule (B) has the competence to enact a kind of framework with regard to issues that fall under the exclusive South Sudan State competence, thereby limiting the legislative powers of the ten States in South Sudan. Finally, the INC has reinforced existing power relations and failed to provide structural changes for democratic transformation, as the INC asymmetrical federalism accommodates the demands of the South Sudan only. As the INC does not accommodate the demands of the different ethnic and cultural groups in the different regions of Sudan as demonstrated in Darfur Peace Agreement and East Sudan Agreement. Chapter Three: The Structure of the Legal System under the INC The INC altered the Sudanese legal system with a view to accommodating the competing views: Sharia law and secularism. For a proper understanding of the present Sudanese legal system and an assessment of the role of the court system in contributing to democratic governance, a glance at the Sudanese legal history is necessary. Firstly, Chapter Three reviews the constitutional developments in Sudan since the independence to the present day. Secondly, Chapter Three provides overview of the structure of the court system in a decentralized system and focuses on the contribution of the court system to democratic transformation through limiting the acts of the government. Chapter Three further discusses issues that may impact of the role of the court system in contributing to democratic transformation. Yet, the role of the court system in promoting democratic transformation is contingent on the constitution, the substantive law, etc. For instance, instituting the principles of constitutionalism is contingent on the independence of the judiciary, as an independent judiciary is required for the protection of constitutional rights and to restrain the actions of the government. Thus, it is important to understand under what conditions the court system develops such accountability functions: that is, what conditions favor the ability of the court system to exercise an effective accountability functions. It is, therefore, Chapter Three examines (a) how the INC re-structures the court system in the north and the south of Sudan so as to give effect to the principles of the federalism and legal pluralism; (b) the rules regulating the judicial review, and (c) the protection of human rights through the implementation of the bill of rights by the court, all of which signal the commitment of the State to establish democratic governance. Finally, Chapter Three attempts to evaluate the independence of the judiciary and the rules that govern the judicial review before and after the adoption of the INC with a view to assessing the fidelity of the government to the principles of constitutionalism, and whether the limitations observed in the actual conduct of the government. In the final analysis, the INC constitution making process was bilateral reflecting the views of the parties to the CPA and lacked inclusiveness, but provides for a pluralism legal system by providing for a constitution for south Sudan and 25 State constitutions. The INC introduces State judiciary and South Sudan judiciary and opted for an integrated the court system. That is: the State courts apply the State laws, the national laws and the South Sudan laws. In the North, the State courts are still organized by the national level, although the NC provides for the establishment of the State judiciary. At the South Sudan level, all State courts are organized and financed at the level. Towards the South Sudan, the National Supreme Court is the final court of on matters arising under national laws The INC emphasizes the importance of protecting; respecting and promoting human rights through the inclusion a bill of right and incorporation via Art. 27(3) of the INC all human rights treaties that Sudan has ratified, thereby the human rights contained in the INC directly applicable before the Sudanese courts. Also, the implementation of some human rights requires revision of the existing statutory laws. To date there has been limited legislative reforms to address human rights violations. A few laws have been reformed but fall short of Sudan international obligations, such as Criminal Act, Security Laws, Immunity Laws, etc. The INC differentiates between the north and the south regarding the sources of legislation. Art. 5 of the INC lists Sharia as one of the sources of legislation along with the consensus of the people at the national level. Art. 5(2) of the INC names popular consensus and the values and the customs of the people of Sudan as the sources of legislation in South Sudan. The INC contains special rules for national legislation if its source is religion or custom. In that case, a state where the majority of residents do not practice such religion or customs may introduce different legislation allows practices or establishes institutions in that State that are consistent with its own religion or customs. The INC establishes human rights commission for the implementation of the bill of rights as well as a commission for the protection of non-Muslims in the Capital. The INC has chosen a concentrated system of judicial review and a hybrid system of judicial review with respect to the South Sudan as the Supreme Court of South Sudan acts as a constitutional court and a high court of Appeal with respect to South Sudan. The newly enacted Judicial and Administrative of 2005 does not provide for concrete judicial review of law and bars the court from question the constitutionality of law by way of making referral to the constitutional court, thereby renders the judiciary unable to deal with crucial constitutional issues. Chapter Four: Institutional and Legislative Reform: Practice of Constitutionalism In order to understand whether the adoption of the INC has brought any changes may enhance the role of the court system in contributing to democratic transformation; Chapter Four scrutinizes the compliance of the statutory law with the provisions of the INC, the law reform process in Sudan and the implementation of law in practice. Chapter Four further presents an analysis of more pertinent provisions of civil and political rights in the light of the laws and practices prevailing in the country to assess the extent to which the principles laid down in the INC are complied with. It further assesses the involvement of the Sudan constitutional court in the law reform process by reviewing a selected human rights jurisprudence of the constitutional court. Finally, Chapter Four makes a reference to the jurisprudence of other constitutional courts (the German constitutional court, the Indian Supreme Court and the South African constitutional court) by way of comparison. In the final analysis, a) the INC does not set out procedure for concrete review and access to the court is not free; b) The court has a broad power to consider and adjudge and annual any law in contravention with the constitution and restitute the right to the aggrieved person and compensate for the harm. The court may also order interim measures to avoid any harm. As such, the court can abolish laws and compel the government to enact new law; c) the constitutional court has reviewed a number of cases that alleged the violation of human rights. The court has demonstrated reluctance to declare legislation unconstitutional. Interpretation of the bill of rights and reference to international human rights lacked consistency and the court has taken deference to the executive; d) the constitutional, legislative and institutional changes did not acknowledge past human rights violations through mechanisms that would question the way of governance and persisting inequalities and injustices; e) the constitutional court has institutional weaknesses and its jurisprudence has largely upheld existing laws such as immunities laws and the constitutional court made limited reference to international human rights law; f) the constitutional, legal and institutional reforms failed to generate the sense of constitutionalism and the fundamental change that were to remove the causes for human rights violations and provide effective remedies. A number of laws contravening the human rights are still in force, such as, Public Order Act, Immunity of police, security and army officers, inadequate laws for the protection of women's rights; and finally, the implementation of CPA as a means of democratic transformation left an unreformed government virtually intact Chapter Five: Post- Referendum Sudan Chapter Five looks at the constitutional developments after the secession of South Sudan, with a focus on constitution making process in Sudan. The Southern Sudan Referendum for self-determination, held in July 2011, clearly indicated that the absolute majority of those who participated in the referendum for the Southern Sudan favour separation of the Southern Sudan from Sudan. The secession of the South Sudan on July 9, 2011, as a result of the referendum on self-determination provided by the CPA has created a new reality in Sudan with far reaching economic, political and social implications. Economic and financial losses related to the secession are substantial and have affected all sectors of the economy. Sudan has lost three-quarters of its largest source of foreign exchange (oil), half of its fiscal revenues and about two-thirds of its international payment capacity. In general, the secession of South Sudan resulted in a 36.5% structural decrease in overall government revenues. The unresolved issue of Abyei constitutes a trigger for potential violent tension in the future between Sudan and South Susan. Abyei status is yet to be decided, as both Sudan and South Sudan claiming it as part of its territory. Its final status will be decided by a Referendum for which implementation mechanisms have not yet been agreed upon by the two countries. The end of the CPA necessitated a constitutional review process to decide on the new constitution to replace the INC. However, for a constitution to be able to win the affections of the citizens of the State, it will be necessary to involve those citizens in the constitution-making process that establishes such a constitution, so as to ensure that the process is inclusive and reflects the aspirations of the Sudanese people at large. It is, therefore, important to increase public involvement in the constitution-making process by inviting public participation. In order for the design of a constitution and its constitution-making process to play an important role in the governance system, the design of the constitution has to be responsive to the aspirations of the ordinary people. A constitutional review process is currently under way but has not resulted in any clear proposals. That said, since 2011, a constitutional review has been underway in Sudan. The constitutional review process has not been participatory or inclusive. Lively debates on the new constitution in general, and the Bill of Rights and human rights protection in particular, have nevertheless ensued. These debates have been driven by a keen awareness of the importance of constitutional rights. These debates reflect both traditional concerns over the protection of civil and political rights, particularly in the administration of justice, and other issues that have also become a cause of acute concern. These include the desire for the realization of economic, social and cultural rights, and the rights of members of groups who suffer discrimination, particular women, religious and ethnic minorities and persons with disabilities. Currently, public debate over the new constitution is proceeding, although the Government has not yet announced a timeframe for the constitution making process, amid a polarization of views on diverse issues such as the decentralization of power and wealth sharing between the different regions of Sudan. Since 2011, the Government of Sudan, in collaboration with the UNDP and other UN agencies, initiated the forum on public participation in constitution making to facilitate open and public dialogue. This approach has been based on the need to pursue the constitutional process/review inclusively, transparently and participatory to ensure all sectors of society including civil society organizations and opposition political groups participate fully in the process.
The authority of the Aceh government in giving birth to a Madani Islamic community based on the Islamic Sharia in the Serambi Mecca through the primary and secondary education channels, it is necessary to integrate Islamic values in all subjects in schools, including the Natural Sciences (IPA) Biology. The problem in conventional teaching and learning approaches for science subjects (Biology) has nothing to do with knowledge of the Quran and Hadith which is the capital for integrating science and technology. This research aims to study the implementation of teaching and learning (Biology) which integrates Islamic values in Middle School (SMP). Specific aspects that are studied are comparing conventional approaches with Islamic group approaches in Natural Sciences (Biology) in the classroom using experimental designs, with the structure of biology tests. The research sample consisted of 123 middle school students and the data were analyzed using statistical tests to determine the average value of the two classes. The results of data analysis show that learning outcomes in natural science (Biology) education are enhanced through an integrative approach to Islam. Multi-way interaction patterns include the ability to ask and answer questions of teachers and peers. Therefore, the integrative approach to Islam in the Natural Sciences (Biology) curriculum needs to be improved and fully applied in general high schools in Aceh. The Aceh Education Office must take this reference for implementing an integrative approach to Islam in all subjects in secondary schools to build a civil society that is obedient to God in the area of Islamic law. Abstrak Otoritas pemerintah Aceh dalam melahirkan komunitas Islam Madani berdasarkan Syariah Islam di Serambi Mekah melalui saluran pendidikan dasar dan menengah, perlu untuk mengintegrasikan nilai-nilai Islam dalam semua mata pelajaran di sekolah, termasuk Ilmu Pengetahuan Alam (IPA) ) Biologi. Masalah dalam pendekatan pengajaran dan pembelajaran konvensional untuk mata pelajaran sains (Biologi) tidak ada hubungannya dengan pengetahuan tentang Quran dan Hadits yang merupakan modal untuk mengintegrasikan sains dan teknologi. Penelitian ini bertujuan untuk mempelajari implementasi pengajaran dan pembelajaran (Biologi) yang mengintegrasikan nilai-nilai Islam di Sekolah Menengah (SMP). Aspek khusus yang dipelajari adalah membandingkan pendekatan konvensional dengan pendekatan kelompok Islam dalam Ilmu Pengetahuan Alam (Biologi) di kelas menggunakan desain eksperimental, dengan struktur tes biologi. Sampel penelitian terdiri dari 123 siswa sekolah menengah dan data dianalisis menggunakan tes statistik untuk menentukan nilai rata-rata kedua kelas. Hasil analisis data menunjukkan bahwa hasil belajar dalam pendidikan ilmu alam (Biologi) ditingkatkan melalui pendekatan integratif ke Islam. Pola interaksi multi-arah meliputi kemampuan untuk bertanya dan menjawab pertanyaan dari guru dan teman sebaya. Karena itu, pendekatan integratif terhadap Islam dalam kurikulum Ilmu Pengetahuan Alam (Biologi) perlu ditingkatkan dan diterapkan sepenuhnya di sekolah menengah umum di Aceh. Kantor Pendidikan Aceh harus mengambil referensi ini untuk menerapkan pendekatan integratif terhadap Islam di semua mata pelajaran di sekolah menengah untuk membangun masyarakat sipil yang taat kepada Tuhan di bidang hukum Islam. Kata Kunci: pendekatan integratif, nilai-nilai islam, pengajaran, materi ilmu biologi
Development in the business sector is very dynamic and requires a number of legal fiqh which are then set forth in positive law in the form of legislation and regulations issued by financial institutions such as Bank Indonesia as the central bank that has the authority to regulate the operation of commercial banks in a country. One of the business instruments in Islam is the muamalah contract in the form of rent and sale and purchase which has now developed into Ijarah Muntahiya bit Tamlik (IMBT) as one of the financing instruments in sharia financial institutions. It was formulated in fatwa Number 27 / DSN-MUI / III / 2002 concerning IMBT. This article will answer how the process of the fatwa came out as a product of Ulama's Ijtihad? What are the legal actions formulated in the fatwa. What is the legal relationship in the IMBT agreement, and has the IMBT fatwa answered the needs of today's ummah in Indonesia? By library method approach it was found that legal actions in the IMBT fatwa were still partial between rent and sale and purchase or sometimes even though the formulation was harmonious and the conditions were put together. In the case of legal actions there is confusion in which one name is IMBT but contains a number of separate legal actions. Then between one legal act of lease and a legal act of purchase is bound by a promise that can be denied. Of course there are weaknesses that in practice will be parties who are harmed if the promise is not fulfilled. It has a weak legal relationship between the parties. Then it needs further study on how the IMBT really produces a strong legal relationship and mutual protection. Keywords: Fatwa, IMBT dan Hubungan Hukum Abstrak: Perkembangan dalam bidang bisnis sangat dinamis dan membutuhkan sejumlah kepastian hukum secara fikih yang kemudian dituangkan dalam hukum positif dalam bentuk perundang-undangan maupun peraturan yang dikeluarkan oleh institusi keuangan seperti Bank Indonesia selaku Bank sentral yang memiliki wewenang untuk mengatur jalannya bank komersial disuatu Negara. Salah satu instrumen bisnis dalam Islam adalah akad muamalah berupa sewa menyewa maupun jual beli yang kini telah berkembang menjadi Ijarah Muntahiya bit Tamlik (IMBT) sebagai salah satu instrumen pembiayaan pada lembaga keuangan syariah. Ketentuan ini kemudian dirumuskan dalam fatwa Nomor 27/DSNMUI/III/2002 tentang IMBT. Artikel ini akan menjawab bagaimana proses lahirnya fatwa IMBT sebagai produk Ijtihad Ulama? Bagaimana perbuatan hukum yang dirumuskan dalam fatwa IMBT. Bagaimana pula hubungan hukum dalam akad IMBT serta apakah fatwa IMBT sudah menjawab kebutuhan ummat masa kini di Indonesia? Dengan pendekatan metode kepustakaan ditemukan bahwa perbuatan hukum dalam fatwa IMBT masih bersifat parsial antara sewa dengan jual beli atau adakalanya hibah meskipun dalam perumusannya rukun dan syaratnya disatukan. Dalam hal perbuatan hukum ada kerancuan dimana satu nama IMBT tapi mengandung sejumlah perbuatan hukum yang terpisah. Kemudian antara satu perbuatan hukum sewa dan perbuatan hukum beli diikat oleh janji yang sifatnya boleh dingkari. Tentu ini ada kelemahan yang dalam prakteknya akan ada pihak yang dirugikan jika janji itu tidak ditepati. Tentu ini melahirkan hubungan hukum yang masih lemah antara para pihak. Maka perlu kajian lebih lanjut bagaimana dalam IMBT betul-betul melahirkan hubungan hukum yang kuat serta saling melindungi. Kata Kunci: Fatwa, IMBT dan Hubungan Hukum
Abstrak Akad nikah melalui media komunikasi teleconference merupakan salah satu bentuk akomodasi kepentingan masyarakat, akad nikah semacam ini merupakan suatu alternatif pilihan efektif dan efesien (dengan tidak meninggalkan syariat Islam) bagi masyarakat modern. Dalam UUP 1974 maupun PP No. 9 Tahun 1975 hanya diatur tentang sahnya pernikahan yang dilaksanakan berdasarkan agama dan kepercayaannya, yakni sebagaimana yang diatur dalam Pasal 2 ayat (1) UUP 1974, lebih lanjut pernikahan tersebut harus dicatatkan ke Kantor Pencatatan Pernikahan (Pasal 2 ayat (2) Jo. Pasal 2 ayat (1) PP No. 9 Tahun 1975. Sedangkan dalam fiqih, penerapan syarat dan rukun nikah mempunyai sebuah landasan dan alasan yang rasional dan transanden untuk dilaksanakan. Setiap penetapan syara'harus diikuti dengan berbagai macam alasan, baik dari sisi manfaat, madlarat (dampak negatif), juga hal-hal lain seperti setting social historis yang ada waktu itu. Berkaitan dengan akad nikah via teleconference, ada beberapa point dalam syarat dan rukun nikah yang harus dianalisa yang jika diterapkan bisa menjadi perdebatan. Dengan menggunakan pendekatan normatif, analisis akad nikah via teleconference baik menurut fiqih mazhab dan hukum positif Indonesia,dapat dikaji argumentasi hukumnya. Jika diukur dengan hasil ijtihad para ulama terdahulu, khususnya Imam mujtahid yang empat, ternyata akad nikah via teleconfrence itu memang dapat saja dilaksanakan dengan syarat-syarat tertentu dan dalam keadaan tertentu. Dalam konteks ini berarti akad nikah melalui teleconfrence itu tidaklah dapat dikatakan sah begitu saja, akan tetapi bersifat kasuistis sesuai dengan situasi yang sedang dihadapi. Kata Kunci; Akad Nikah, Teleconfrence, Majlis Akad, Saksi dan Pencatatan Abstract Marriage through teleconference communication media is one form of accommodation of public interest, this kind of marriage contract is an alternative effective and efficient choice (by not leaving Islamic sharia) for modern society. In the UUP 1974 and PP no. 9 of 1975 is stipulated only on the validity of marriages which are conducted on the basis of their religion and belief, namely as provided for in Article 2 paragraph (1) of the UUP 1974, further the marriage shall be registered at the Marriage Registration Office (Article 2 paragraph (2) of Jo. Paragraph (1) of Government Regulation No. 9 of 1975. Whereas in fiqh, the application of the terms and principles of marriage has a rational and transparent basis and reason to be implemented. Each determination should be followed by various reasons, Negative impact), as well as other things like the historical social setting that existed at that time. In connection with the marriage contract via teleconference, there are several points in the terms and pillars of marriage that must be analyzed which if applied can be a debate. Using normative approach, Marriage via teleconference both according to jurisprudence and positive law of Indonesia, can be studied the legal argument. If measured by the results Ijtihad of the previous scholars, especially the four mujtahid Imam, the marriage contract via teleconfrence can indeed be carried out under certain conditions and under certain circumstances. In this context means the marriage contract through teleconfrence can not be said to be legal, but it is casuistic in accordance with the situation at hand. Keywords; Akad Nikah, Teleconfrence, Majlis Akad, Witness and Recording
Purpose: the article examines the main problems associated with the extension of arbitration of domestic and international Islamic financial disputes in Malaysia. These include the specific features of the legal regulation of Malaysia, excluding the resolution of certain categories of cases by way of arbitration, and the lack of legal certainty in the submission of cross-border contracts in the field of Islamic banking to Sharia law.To achieve this goal in the article you must accomplish the following tasks: to determine whether there are institutions in Malaysia providing arbitration services for disputes in the field of Islamic banking; investigate the reasons for the unwillingness of the parties to a financial dispute to transfer it to arbitration; to identify the main problems of transferring a cross-border financial dispute to international arbitration; to study the practice of international arbitration on this issue.Methods: this article is based on an interdisciplinary concept of research, which allowed to distinguish the distinctive features of the legal regulation of the settlement of financial disputes in Malaysia.Results: currently the popularization of arbitration permits for domestic and international financial disputes in Malaysia faces difficulties due to both internal reasons and the traditional approach of Islamic banks to include in contracts the reservation of subordination of the provisions of the contract to the law of England or the United States in conjunction with the reservation clause financial disputes in the courts and arbitration of these states. Nevertheless, one can assume with great confidence that, following the development of Islamic banking, so-called Islamic arbitration will spread in Malaysia.Conclusions and Relevance: the materials outlined in the article show the special role of arbitration in resolving domestic and international disputes in the field of Islamic banking. Practical application of its results will improve the Russian legislation in the sphere of resolving financial disputes. ; Цель: В статье рассматриваются основные проблемы, связанные с распространением арбитража внутренних и международных исламских финансовых споров в Малайзии. К ним относят как особенности правового регулирования Малайзии, исключающего разрешение определенных категорий дел в порядке арбитража, так и отсутствие правовой определенности при подчинении трансграничных контрактов в сфере исламского банкинга нормам шариата. Для достижения поставленной цели в статье необходимо решить следующие задачи: выявить, имеются ли в Малайзии учреждения, предоставляющие услуги по арбитражному разрешению споров в сфере исламского банкинга; исследовать причины нежелания сторон финансового спора передавать его на разрешение арбитража; выявить основные проблемы передачи трансграничного финансового спора в международный арбитраж; исследовать практику международных арбитражей по данному вопросу.Методология проведения работы: Данная статья основана на сравнительно-правовом методе исследования, который позволил выделить отличительные особенности правового регулирования разрешения финансовых споров Малайзии.Результаты работы: В настоящее время популяризация арбитражного разрешения внутренних и международных финансовых споров в Малайзии сталкивается с трудностями, вызванными как внутренними причинами, так и традиционным подходом исламских банков на включение в контракты оговорки о подчинении положений контракта праву Англии или США во взаимосвязи с оговоркой о разрешении финансовых споров в судах и арбитражах указанных государств. Тем не менее, можно с большой уверенность предположить, что вслед за развитием исламского банкинга, в Малайзии получит распространение и так называемый исламский арбитраж.Выводы: Материалы, изложенные в статье, показывают особую роль арбитража в разрешении внутренних и международных споров в сфере исламского банкинга. Практическое применение ее результатов позволит совершенствовать российское законодательство в сфере разрешения финансовых споров.
ABSTRAK Zakat merupakan salah satu rukun Islam yang pelaksanaannya didasarkan pada syariat / hukum Islam. Selain sebagai ibadah ritual, zakat juga merupakan ibadah sosial dan memiliki dimensi politik dikaitkan dengan keterlibatan negara dalam pengelolaannya. Pengelolaan zakat telah mengarah pada struktur yang formal, kolektif, terorganisir dan permanen sejak masa Nabi Muhammad shallallahu "alaihi wa sallam. Seiring perkembangan wilayah kekuasaan Islam, tingkat perekonomian yang semakin maju dan struktur pemerintahan yang semakin kompleks, kebijakan pengelolaan zakat berubah secara dinamis sesuai perubahan zaman. Bentuk pengelolaan zakat dan keterlibatan negara dalam pengelolaan zakat pun bermacam-macam. Pengelolaan zakat di Indonesia juga mengalami perkembangan yang sedemikian rupa. Sebagai negara yang memiliki populasi penduduk Muslim terbesar di dunia, persoalan zakat pun menjadi tak dapat dipisahkan dari kehidupan sosial masyarakat Indonesia. Negara Indonesia bukanlah negara agama / negara Islam, di mana syariat agama Islam dijadikan sebagai landasan konstitusi negara, melainkan negara demokrasi yang menjadikan nilai-nilai keagamaan sebagai landasan konstitusi. Di negara-negara yang menjadikan agama Islam sebagai landasan konstitusi negara, pelaksanaan zakat adalah suatu kewajiban. Ada pemaksaan dari negara kepada warga negara untuk membayar zakat dan terdapat sanksi atas kelalaian pembayaran zakat. Di negara-negara ini, zakat dimasukkan dalam sistem keuangan negara, bahkan bisa dikatakan sebagai pajak wajib umat Islam karena negara tersebut tidak membebankan pajak kepada pemeluk agama Islam kecuali zakat. Dalam penulisan makalah ini, penulis memfokuskan permasalahan pada rumusan masalah : "Apa peran negara dalam pengelolaan zakat umat Islam di Indonesia?". Berdasarkan hasil pembahasan, penulis menyimpulkan bahwa Negara tidak memaksa terhadap warga negara Indonesia dalam membayar zakat karena pembayaran zakat di Indonesia adalah bersifat sukarela. Namun, negara berperan dalam hal pengelolaan zakat karena berhubungan dengan kepentingan umum di mana dana zakat dari umat Islam dikumpulkan dan dikelola dan agar tujuan dari pengelolaan tersebut tercapai dan tidak ada hak umat Islam yang dilanggar. Dalam hal pengelolaan zakat umat Islam di Indonesia, negara berperan sebagai regulator, pengelola dan pengawas. Kata kunci : Peran negara, pengelolaan zakat 1 ABSTRACT Zakat is one of the pillars of Islam that its implementation is based on sharia / Islamic law. Aside from being a ritual worship, zakat is also a social worship and has a political dimension linked to the involvement of the state in its management. Zakat management has led to a formal, collective, organized and permanent structure since the time of Prophet Muhammad peace be upon him. As the development of Islamic territory, the increasingly advanced level of the economy and the increasingly complex government structure, zakat management policies changed dynamically according to the changing times. Forms of zakat management and state involvement in the management of zakat also vary. The management of zakat in Indonesia has also developed in such a way. As a country that has the largest Muslim population in the world, the issue of zakat became inseparable from the social life of Indonesian society. The State of Indonesia is not a state of religion / Islamic state, where Islamic Shari'a is used as the foundation of the constitution of the state, but a democracy that makes religious values the foundation of the constitution. In countries which make Islam the foundation of the state constitution, the implementation of zakat is an obligation. There is coercion from the state to the citizens to pay zakat and there are sanctions for the negligence of zakat payment. In these countries, zakat is incorporated into the state's financial system, it can even be regarded as a compulsory tax for Muslims because it does not impose tax on Muslims except zakat. In writing this paper, the authors focus the problem on : "What is the role of the state in the management of Muslims" zakat in Indonesia?". Based on the results of the discussion, the authors conclude that the state does not force against the citizens of Indonesia in paying zakat because the payment of zakat in Indonesia is voluntary. However, the state plays a role in the management of zakat because it deals with the public interest in which zakat funds from Muslims are collected and managed and for the purpose of the management is achieved and no rights of Muslims are violated. In terms of Islamic zakat management in Indonesia, the state acts as regulator, manager and supervisor. Keywords: Role of state, Management of zakat
"Der Beitrag identifiziert verschiedene Diskurse innerhalb des islamischen Feminismus. Es wird gefragt, ob islamischer Feminismus dazu beiträgt, Frauenrechte zu stärken, und inwieweit er Frauen einen Zugang zur öffentlichen Sphäre und Autonomie in der privaten Sphäre ermöglicht. Es wird gezeigt, dass der islamische Feminismus einen positiven Einfluss auf die Förderung von Frauenrechten hat, und zwar nicht nur innerhalb islamischer Diskurse, sondern auch in nationalen und internationalen Institutionen. Dennoch trägt der islamisch-feministische Diskurs auch eine mögliche Gefahr für den Status von Frauen in muslimischen Gesellschaften in sich, da religiös motivierte Argumente gegen die UN-Konvention für Frauenrechte vorgebracht werden, sobald diese zum islamischen Recht der Scharia im Widerspruch steht." (Autorenreferat)
Marx has a threefold objective in "On the Jewish Question": to respond to Bruno Bauer's views on the same issue; to give us his own standing on the matter of the political emancipation of Jewish populations in Germany and the rest of Europe, while at the same time defining what political emancipation means for each citizen, no matter the religion, in a modern State; and lastly, to show us how political emancipation is not enough and how actual freedom (political plus social) is accessible to all once a new, final and imperative kind of emancipation is obtained: human emancipation. This paper will be divided into two parts: the first one will try to briefly review and explain Marx's text. Particular attention will be given to the differentiation between political and human emancipation and its implications. In this section, Marx's views on Judaism will be clarified by analyzing them on their proper socio-historical context. In the second one, an interesting and, hopefully, appropriate exercise will be put into consideration: taking into account Marx's concerns regarding the possibility of inclusion of a religious minority into the public spheres of a secular State, the Jewish question of 19th century's Europe will be altered into the Muslim question of 21st century's Europe. According to Yoav Peled the main difference between how Bauer and Marx confront the issue of Jewish emancipation is that the former one considers the problem as a theological one, while the latter does it as a sociological one (1). Bauer affirms that not only the Jews are longing for political emancipation, meaning being recognized by the State as equal citizens; but also the rest of the Gentile population is awaiting such recognition. The State cannot emancipate Jews if it still has not emancipated the rest. The Jewry cannot obtain full citizenship if there are no citizens. In order to attain political emancipation the State has to become a secular one, not to recognize any religion as its official one and to extend freedom of religion to all of its citizens. Religious freedom would require religion's removal from the public sphere and its "ostracism" into a private creed. This privatization of religion would eventually abolish it. Nevertheless, Bauer does not consider the Jews capable of becoming free because he does not consider Judaism able to become a private creed. Bauer characterizes Judaism as a religion of law not as, like Christianity, areligion of faith. Being a religion based on actions and not on beliefs would completely be opposed to freedom of religion, to its own removal from the public sphere. Judaism could not become free because there is a chance that its laws would contradict the laws of the State. Marx, instead, affirms that Jews (and Christians), in order to be really emancipated do not have to abandon Judaism in a theological way, but have to do it in a sociological manner. Political emancipation as stated by Bauer is not the final possible form of emancipation, but it is the last possible form of emancipation within the framework of the prevailing social order. For example, according to Marx the citizens of the United States of America, which at the time was the best case of a modern secular State, still practiced, and needed to practice, their religious beliefs as private creeds. Then, Bauer was wrong; religion survived the test and did not disappear after political emancipation. As reported by Marx this happened because when religion is expulsed from the sphere of public law to that of private law, religion becomes the spirit of civil society and the essence of differentiation which leads to, and presupposes, inequality. Political emancipation divides the human being into two antagonistic spheres: the individual, who is egoistic by nature and based in inequality and corresponds to civil society; and the citizen, who is based in common solidarity and equality and complements with the State. This separation can only be overcome by human emancipation. Human emancipation is the final and real kind of reachable and desired emancipation by all human beings. Human emancipation would erase all deficiencies that are found in civil society: private property, insecurity and religion. Human emancipation would, then, end social inequality. Only then, humans would achieve real and total freedom. Only when the individual and the citizen would synthesize their antagonisms in the species-being would humanity be free from all its social and political constraints and a truly democratic State would appear. (2)Marx's views on Judaism have been defined as anti-Semitic by several critics; but it is not the case (3). First of all, Marx was a strong advocate for political emancipation to the Jewish communities in Europe, especially in Germany, and he believed, in opposition to Bauer, that the Jewry was fully capable of becoming citizens in a secular State by privatizing their creed. Although, it has to be said that Marx, like Bauer, considered Judaism to be a religion based on laws; he did not directly consider the case if Judaism could withstand the transformation to a private form. Orthodox Jews, for example, would not become suitable for citizenship in the modern secular State. Because Marx could not resolve this argument in a direct form he chose to solve it by taking Judaism in its socio-historical context instead than in a purely theological way. To Marx Jews have embodied the mercantile spirit in a natural economy dominated Europe (4). Jews did not choose to be merchants or entrepreneurs: feudal society limited them to those kinds of activities. They could not legally own land or be members of any corporate guild. Jews could only deal with money or goods exchange(5). Then, Jews could only be considered as bourgeois, as capitalists, as financiers. Even if, like Marx says, the Jewish mercantile particularity had already generalized through the Christian world and there was no economic basis for distinguishing between Jews and Gentiles, which allowed the Jews to practically self-emancipate by the "Judaization" of society; the general public was still perceiving Judaism as a synonymous of "merchants"(6). It is rather interesting to note that in 1850 half of all entrepreneurs in Berlin were Jews and that in 1861 58% of the Prussian Jewry was engaged in commerce and credit, while only 2% of Christians was similarly employed (7). When Marx calls for the abolition of Judaism, he is calling for the abolition of the economic activity that was a reflection of the Jews social-historical role in society; he is calling for the end of the mercantile/capitalist elements that produce social inequality. The abolition of Judaism means the abolition of all religions through the correction of the secular defect of civil society(8). Finally, Marx's views on the political emancipation of a religious minority and of social emancipation as the only way to end all inequalities and distinctions could be helpful in order to understand the current Muslim Question that is concerning much of Europe. The Muslim question is significantly different from 19th century's Jewish question. Jews were asking for the State's recognition of the same basic constitutional rights that Christians already, or were about to, benefited from. Additionally, liberal-secularists, like Bauer, were concerned about Judaism's capability to remove their religious practices from the public sphere and privatize them. According to them, it was essential for the survival of the modern secular State that its citizens should exclude their religious distinctiveness from all of their public interactions with the State or with other fellow citizens. Today, Muslims in Europe enjoy all of the individual and social rights that are recognized in each of the European Constitutions; meaning political emancipation is not an issue. It is Islam's interactions with the secular, and almost irreligious, European public spheres that has become on of the most fervent debates in the last few years. Such debate extremely overcomes the purpose of this article, but a few points should be taken into account regarding the Muslim question and the relevance of Marx's work on the matter. Marx, just like with the political emancipation of the Jews, would not have been able to directly confront the possibility of a real privatization of Islamic beliefs, because he would have faced the same issue that arose in the Jewish question: Islam, like Judaism, is a religious of laws. As it has been said, a religion of laws will almost certainly contradict the laws of a secular State and would not be able to refrain from interrelate with the public sphere. For example, teachers wearing a Muslim veil or turban in public schools; Muslim women wearing burqas in public facilities; the introduction of Sharia law in order to legalize social relationships within Muslim communities and in their relations with non-Muslim communities; etc., are challenges to the secular State. Several European countries are juggling between the right of freedom of religion and absolute secularism(9): France chooses to ban burqas in public spaces; the Netherlands to expel teachers from public schools that insisted in wearing veils or turbans in class; Italy to reform family law in order to stop "honor killings" among Muslim families; etc. But like with Judaism, Marx would overcome Islam's inability to privatize its creed by arguing that such incapability is a symptom of the antagonism between civil society (the individual egoistic man) and the State (the solidary citizen) and that will never be surpassed until human emancipation is obtained. Interestingly enough, while during the 19th century Jews were an equivalent to bourgeois and entrepreneurs, Muslims of the 21st century, on the other hand, are identified with other kinds of socio-economic characterization. Muslims are identified either as proletarians or as lumpenproletarians. Remarkably, the occupational standing of 84% of Muslims living in Germany is either blue or white collar; compared to just 40% of non-Muslims Germans (10); 20% of young non-Muslim French are unemployed compared to 50% of young French Muslims(11); 9% of non-Muslim Dutch are unemployed, while 30% of Dutch Muslims are jobless(12); 10% of non-Muslim Belgians live below the poverty line, while 60% of Muslim Belgians are poor(13); 15% of non-Muslim British households are in poverty, but that percentage ascends to 55% when Muslim British households are considered(14). In Europe 80% of Muslim men are employed in low-skill/low-wage jobs and in routine manual and service occupations, only 45% of non-Muslim men are employed in the same kind of jobs(15). Finally, when the Human Development Index is taken into account and it is divided among the Muslim and non-Muslim population in the European countries it is evidenced that the standard of living of Muslim communities is significantly lower than that of the rest (16). This brief and expedited socio-economic context of Muslims in Europe would be employed by Marx in order to circumvent Islam's inability to privatize its creed: Muslims, although they live in modern secular States and enjoy political emancipation, persist in carrying on with their religious practices in public spaces, and sometimes in opposition to public laws, because they are suffering social inequality; they are suffering from not attaining human emancipation. Of course, all human beings lack of human emancipation, not only Muslims in Europe, but it is Muslims' special socio-economic situation in Europe that creates a secular deficiency from political emancipation and prevents their religion's transformation into a private creed. Jews did not have political emancipation and were, in their majority, entrepreneurs, which gave them a better socio-economic standing and allowed them to privatize their religion once political emancipation was conquered. Most of European Muslims, in contrast, are proletarians and, in worst cases, lumpenproletarians (17)and even if they enjoy political emancipation they find themselves in a position characterized by an extreme social inequality, that does not allow many of them to privatize their creed (18). Only through human emancipation and social equality they would be able to negate their religious differentiation; because in a true democratic State, a communist State according to Marx, communism itself would act as a religious belief and manner of living. That is, perhaps, how Marx intended to accomplish the abolition of all religions: by the emergence of a new politically and socially equal "religion for all human beings", that of communism.(1) Peled Yoad; "From Theology to Sociology: Bruno Bauer and Karl Marx on the Question of Jewish Emancipation";History of Political Thought; Vol. XIII, No. 3, Autumn, 1992. (2) Marx borrows the concept of species-being from Feuerbach. It seems to be implied in the text, although it is more possible to be influenced by later Marx's texts, that revolution is the mean to obtain human emancipation; the mean that those who suffer from social inequality will use in order to end that suffering. Once human emancipation is reached then the democratic/communist State is at hand. Again, this is not actually said in On the Jewish Question. (3) See Flannery Edward, Antisemitism: Myth and Hate from Antiquity to the Present, Palgrave Macmillan, London, 2005, pp.154-157; and Lewis Bernard, Semites and Anti-Semites: An Inquiry into Conflict and Prejudice, W. W. Norton & Company, New York, 1999, pp. 112.(4) Peled Yoad; "From Theology to Sociology: Bruno Bauer and Karl Marx on the Question of Jewish Emancipation"; History of Political Thought; Vol. XIII, No. 3, Autumn, 1992, pp. 475. (5) It was this image of the "financial Jew", embodied in the Rothschild dynasty, which begot the western anti-Semitic wave of the 19th and 20th century. See Arendt, Hannah, The Origins of Totalitarianism, Benediction Books, New York, 2009; Ferguson Niall, The Ascent of Money: A Financial History of the World, Penguin, New York, 2009; Ferguson Niall, The House of Rothschild, Penguin, New York, 2000; Landes David,Dynasties: Fortunes and Misfortunes of the World's Great Family Businesses, Penguin, New York, 2007.(6) Actually, the word "Judentum" came to be a synonymous with commerce.(7) Sorkin David, The Transformation of German Jewry, 1780-1840, Wayne State University Press, New York, 1999, pp. 108-9.(8) Peled Yoad; "From Theology to Sociology: Bruno Bauer and Karl Marx on the Question of Jewish Emancipation"; History of Political Thought; Vol. XIII, No. 3, Autumn, 1992, pp. 481.(9) For more about the interaction of Muslim minorities and political liberalism in a Rawlsian version see Benhenda, Mostapha, "For Muslim Minorities, it is Possible to Endorse Political Liberalism, but this is not Enough", Journal Of Islamic Law and Culture, Vol. 11, No. 2, May 2009, pp. 71-87. The article concludes that almost all Muslim minorities could and will endorse political liberalism, but many will not be able to do it because of a religious normative prohibition to reform their doctrine.(10) "Muslim Life in Germany", Federal Office for Migration and Refugees, German Government, http://www.bamf.de/SharedDocs/Anlagen/EN/Migration/Publikationen/Forschung/Forschungsberichte/fb6-muslimisches-leben,templateId=raw,property=publicationFile.pdf/fb6-muslimisches-leben.pdf(11) "Muslims in Europe", Open Society Institute; http://www.soros.org/initiatives/home/articles_publications/publications/muslims-europe-20091215/a-muslims-europe-20100302.pdf(12) Ibid.(13) Ibid.(14) Ibid.(15) Ibid.(16) For example, the HDI of Spain, Italy, Great Britain, France, Germany and Sweden are: 0,955; 0,951; 0,947; 0,961; 0.947 and 0,963 respectively; while the HDI of their respective Muslim communities are: 0,841; 0, 848; 0, 830; 0, 850; 0, 860; 0,912. Available at the European Social Survey http://ess.nsd.uib.no/ (17) Loïc Wacquant would call them "urban outcasts" or marginal. See Wacquant Loïc, Urban Outcasts: A Comparative Sociology of Advanced Marginality, Polity, Cambridge, 2007; Wacquant Loïc, Prisons of Poverty, University of Minnesota Press, Minneapolis, 2009; Wacquant Loïc, Los Condenados de la ciudad. Gueto, peripherias, Estado, Siglo XII Editores, Buenos Aires, 2007.(18) Certainly they are more religious than Christian and Jewish Europeans because they are perceived as a marginalized minority and in fierce competition with non-Muslim proletarians. It is civil society that enforces religious differentiation on them.*Estudiante de Doctorado, New School for Social Research, New YorkMaestría en Estudios Internacionales, Universidad Torcuato Di Tella, Buenos AiresÁrea de Especialización: Procesos de formación del Estado moderno, sociología de la guerra, terrorismo, genocidio, conflictos étnicos, nacionalismos y minorías.
"If there was ever a doubt about just how American Mr. Obama is, Sunday's raid eliminates it better than any long-form birth certificate. This was his finest hour." Bret Stephens, the Wall Street Journal Late at night on Sunday May 1st President Obama announced to the nation that Osama Bin Laden had been found and killed by a US Navy Special Operations team. The Navy SEAL team Six, as it is known here, landed two helicopters inside a walled three-story compound in Abbottabad, Pakistan, where years of painstakingly gathered intelligence had led authorities to believe there was a high chance the Al Qaeda leader may be hiding. This may well have been the largest, most successful intelligence operation in US history; the President acted boldly and decisively and for that he received accolades from both sides of the political divide. Coming as it did just a month after the President launched his re-election campaign, this victory immediately boosted his approval rate by eleven points, according to surveys.Even if the strategic defeat of Al Qaeda has not yet been accomplished, this was a huge milestone and the closing of a chapter that started ten years ago when the hunt for Osama Bin Laden was launched by the Bush administration. Last week's operation resulted in the largest trove of data ever found on Al Qaeda, including information on immediate threats being planned, location and structure of its leadership, and scores of data that will help piece together a deeper understanding of their long-term tactics, techniques and procedures.Disposing of such a reviled figure who, for over ten years had ordered the killing of innocent civilians around the world, is undoubtedly a great blow both symbolic and real, to Al Qaeda, a decentralized movement whose members are tied together mainly by feelings, emotions and mythology. But does it sound the death knell for the organization? What are its short and long term implications? Al Qaeda has proven to be quite resilient, but is it still spreading and growing? More importantly, how relevant is it in the face of the Arab Spring moving throughout the Middle East and Northern Africa?All these questions need to be pondered carefully, since they have deep implications for US foreign policy in the region, for the war in Iraq and Afghanistan, and for its difficult and troubled relation with Pakistan. This unexpected win will lead to a comprehensive reassessment of US military presence in the area, its strategies of counterinsurgency and counterterrorism, and its alliance with Pakistan.American reaction to Osama Bin Laden's death was one of noisy, overt celebration in New York and DC, and of relief and jubilation in the rest of the country. It was indeed the reverse of the deep shock, terror and bereavement of 9-11, but both instances had one common denominator: there was a sense of collective emotion, of a long-forgotten and now recovered national unity. However, this did not last long as incipient criticism and second-guessing started 24 hours later over Bin Laden's burial at sea and the decision by the administration not to show pictures of his death. It came from both sides of the ideological spectrum and, in some cases, it was bolstered by strong arguments. For example Alan Dershowitz, the Harvard Law professor, considered the burial at sea a "willful destruction of evidence that may arise suspicions that there was something to hide." Others used the occasion to stir up doubts and demanded pictures to certify Bin Laden's death, but then again, these are not to be taken seriously sine they were the same groups that had to be shown a long version of the President's birth certificate as evidence he was American. A second criticism coming mainly from some Neo-conservatives, was the administration's failure to recognize publicly that the intelligence gathering that led to the finding and killing of Bin Laden was a vindication of the "enhanced interrogation techniques" (read: water boarding) used by the Bush administration in foreign detention centers and at Guantánamo, which Obama had consistently and very publicly condemned during the 2008 campaign and into his years in office.To the first, members of the administration responded that the point was to dispose of his body in a respectful manner, not because he deserved it but to deny a source of friction with other Muslims and to deprive his followers with a shrine and an opportunity to exploit him as an iconic martyr. A similar argument was used to explain the decision not to release the pictures: the President wants to avoid ostentatious displays of triumphalism that may come back to haunt him. His sobriety and restraint further reinforce the boldness of his decision and his steadfast determination to "disrupt, dismantle and defeat" Al Qaeda and not be distracted from his goal by premature claims of "mission accomplished".To the second claim, the White House responded that the success of the operation is far from a vindication of such unconstitutional techniques, since it was the result of the hard work of professionals over time and across two administrations, who integrated thousands of small pieces of intelligence gathering coming from human and technological sources into one gigantic puzzle, and that no one single piece led the US to Bin Laden. It took all the resources only the US can muster, from military bases to networks of human intelligence, to electronic eavesdropping, to specially trained forces, to locate and kill one hidden individual in a foreign country, and then match his DNA in an aircraft carrier before disposing of the corpse. But it also took a courageous American president to make such a risky call, namely, authorizing a covert operation deep into Pakistani territory based on circumstantial evidence at best, and without alerting the Pakistani authorities about it. Fortunately, wide recognition was given to the President's courage and many on the Right called it "Obama's Finest Hour". Both former President Bush and his prickly vice-president Cheney congratulated Obama and gave him full credit.A more productive conversation that has already started in academic and diplomatic circles is how relevant Bin Laden's death is for the Arab world. If he had died eight years ago, says one French scholar, he would have instantaneously become a martyr in the Arab street, an icon of anti-Western sentiment. However, in 2011, he had receded into the back of the consciousness of young Arabs for several reasons. First, because he had been in hiding for so long that his presence in the media had been noticeably diminished: out of sight, out of mind. Time spent out of the limelight erases mystiques and cools down emotions. Secondly because many saw him as the culprit for bringing the United States into Iraq and Afghanistan, which in turn gave an excuse for authoritarian regimes in the region to become even more repressive and extend their time in power. In Iraq, local Sunnis blame Al Qaeda for bringing the Shiites to power and expanding the influence of Iran in their country. Also, Bin Laden and Al Qaeda had increasingly lost the allegiance of many Muslims around the world for their indiscriminate bombings of hospitals, mosques and shrines and the killings of non-combatant Muslims in Baghdad, Basra and Amman (even if many were Shiite, the slaughter of innocent women and children caused revulsion in these populations).More importantly, the wave of pluralistic revolutions sweeping the Middle East and North Africa has rendered Al Qaeda irrelevant. There is an emerging sense of strong national identities, whereby the masses are thinking of themselves first as Egyptians, Tunisians or Libyans, with ethnicity and religion taking a secondary role. Indeed, Nasser's Pan-Arabism died the 1960sm, and the dream of a Caliphate "extending Islamic rule from Indonesia to Spain", which Bin Laden proposed as Al Qaeda's ultimate goal is no longer an interesting proposition to the extremely young populations of the region, many of whom have access to the new social media in the Internet, and who crave freedom and modernity more than anything else. The "Arab Spring" may spell the end of Al Qaeda's political aspirations for the region: the Turkish model of a secular, modern state with an overwhelmingly Islamic population and a pluralistic party system is far more appealing than the pan-Islamic caliphate of the Prophet's era. In the words of Professor Fouad Ajami, "It is risky to say, but Arabs appear to have wearied of violence…It was Bin Laden's deserved fate to be struck down when an entirely different Arab world was struggling to be born."Time and treasure spent in a ten-year war have also changed perspectives in America, especially for the younger generations. There is an on-going unofficial revision of the Bush doctrine of invading whole countries "that harbor, train or fund terrorists" in favor of narrower, more focused actions against the terrorists themselves. The wars in Iraq and Afghanistan have taken their toll on the American military as far as recruitment and resources. The main concern of voters is the American economy, especially unemployment and the ever-expanding national debt. A hundred and forty thousand American and NATO troops are involved in counterinsurgency operations in Afghanistan, with no endgame in sight. Killings of Americans by despondent Afghan soldiers and other groups whose "hearts and minds" the US is supposed to win, occupy the headlines daily. Counter-terrorism increasingly seems to be a much more appealing and productive strategy. Expressing this widely-held sentiment, Senator Kerry recently declared: "There is no possible victory to be had in Afghanistan".Even though President Obama called it a war of necessity and has invested deeply in it, this is no longer a popular war: two-thirds of the American electorate is against it. Therefore, there will be pressure on President Obama to accelerate the phased withdrawal from Afghanistan, and complete it before the set deadline of 2014. He is a rational decision-maker who does not easily cave under pressure, but the 2012 election is likely to enter into his calculations. As a champion of counter-terrorism and opposing counter-insurgency from early on, Vice-president Biden might still be vindicated in his wisdom. When Obama opted for the surge in Afghanistan two years ago, he overruled Biden and sided with the military. Will he change his mind and speed up the withdrawal now? The killing of Bin Laden certainly gives him an opening to change his initial timetable. "Al Qaeda is no longer there, and the Taliban must be beaten by Afghans themselves", says Leslie Gelb, president emeritus of the Council of Foreign Relations.Finally, the fact that Pakistan has proved to be an unreliable partner in the war against terrorism is also putting pressure on the President to review his Afghan policy. The alliance is frayed; Pakistan is giving sanctuary to violent militants of all sorts, and another high Al Qaeda operative now in American custody, Khalid Sheik Mohammed, was also found in Pakistan (Rawalpindi). Indeed, by the rationale of the Bush doctrine, the US should be invading Pakistan next. The White House says they have no evidence that there was any "foreknowledge" by the Pakistani leadership that Bin Laden was holed up in a one-million-dollar compound, in a military town, only 30 miles away from Islamabad. Pakistan will conduct its "own investigation" and will have to prove itself a worthy ally, for example, by sharing information gleaned from Bin Laden's three wives and several children now held under Pakistani custody. On the other hand, veteran security experts retort, more terrorists have been arrested by the Pakistani authorities since 2001 than anywhere else in the world. In this case, was it incompetence or complicity? Pakistan is a very complex country, where the military are an autonomous force above civilian rule, and they also control the Intelligence Services (ISI). It is a house divided against itself. It harbors numerous militant groups, and goes after some but not others. It hedges its bets this way so as not to lose influence and power in the region, for example by supporting the Taliban and Haqqani networks fighting to seize power in Afghanistan, and the Lashkar-e-Taiba organization against India in Kashmir. Pakistan's foreign and national security policy is built around its obsession with India, its most vilified enemy and against which it has fought several wars. It is clear now that ISI gave sophisticated support to the Mumbai terrorist attack in 2009. Pakistan needs a friendly government in Afghanistan so that it can maintain its "strategic depth" vis à vis India. Armed with over a hundred nuclear weapons and with some control over this wide array of militant groups, Pakistan is pivotal in the stability of South Asia. Those are the two main reasons why the US-Pakistani relationship survived after the Cold War ended. Because of the weakness and corruption of civilian governments, past and present, the US has preferred to engage with the military, who control the nuclear arsenal, and has made them the recipient of most US aid (indeed, by the end of this year alone the Pakistani military will have received $3 billion from the US). But this may be about to change if Pakistan rejects the US request to be in charge of the internal investigation on whether Bin Laden was given sanctuary, and if so, by whom.Now that its main leader has been killed, and in spite of its virtual irrelevance, Al Qaeda is likely to undergo an internal struggle to determine its future. The mystique of its international role has already somewhat dissipated and the different groups in the network are shifting their focus to their national agendas. Indeed, this has already been the case in Egypt, where after days of ominous silence on the Tahrir Square Revolution, Al Qaeda's second in command, Egyptian-born Al-Zwahiri injected himself in the process by supporting the leader of an Islamist party that wants post-Mubarak Egypt to adopt Sharia law. But his attempt did not resonate with the young revolutionaries, most of which want a pluralistic society and are much more concerned with jobs and government accountability than with religious utopia. However, revolutions are just the beginning of a long process, transition periods are by definition unstable, and post-revolutionary regimes have historically been highjacked by extremists. So one can only be cautiously optimistic about what will come next, but it appears as if the Middle East and the Arab world are moving on and beginning to spell the end of Al Qaeda's aspirations. Bin Laden's demise is the appropriate end of this chapter in the region's history.Senior Lecturer, Department of Political Science and Geography Director, ODU Model United Nations Program Old Dominion University, Norfolk, Virginia
ABSTRAKPenelitian ini bertujuan untuk mengetahui implementasi akuntabilitas pengelolaan zakat di Indonesia serta menganalisis dampak penerapan finansial teknologi dalam kerangka akuntabilitas pengelolaan zakat di Indonesia. Metode yang digunakan dalam penelitian ini adalah penelitian kualitatif dengan framework systematic literature review. 3 pertanyaan utama dirumuskan untuk mengakomodir framework systematic literature review. Diperoleh dua puluh empat artikel yang diterbitkan pada jurnal nasional maupun internasional terakreditasi. Hasil analisis terhadap seluruh artikel tersebut adalah akuntabilitas pengelolaan zakat di Indonesia diwujudkan dalam bentuk laporan keuangan yang disusun oleh organisasi pengelola zakat dengan mengacu pada PSAK 109. Penyelesaian masalah terkait rendahnya akuntabilitas pengelolaan zakat di Indonesia dapat diatasi melalui penerapan finansial teknologi dalam pengelolaan zakat oleh organisasi pengelola zakat. Namun demikian, masih dibutuhkan regulasi pemerintah yang mengatur lebih rinci mengenai bagaimana pelaksanaannya.Kata Kunci: Finansial Teknologi Syariah, Akuntansi Syariah, Zakat, Indonesia. ABSTRACTThis study aims to determine the implementation of zakat management accountability in Indonesia and to analyze the impact of the application of financial technology in the accountability framework of zakat management in Indonesia. We employed the systematic literature review framework as a methodology to achive the research's objectives. Three main questions were formulated to accommodate the systematic literature review framework. Twenty-four articles published in accredited national and international journals were obtained. The results of our study indicate that the accountability of zakat management in Indonesia is manifested in the form of financial reports prepared by the zakat management office with reference to PSAK 109. Solving problems related to the low accountability of zakat management in Indonesia can be overcome through the application of financial technology. However, there is still a need for government regulations that regulate in more detail on how to implement the financial technology.Keywords: Sharia Financial Technology, Sharia Accounting, Zakat, Indonesia. REFERENCESAfiyana, I. F., Nugroho, L., Fitrijanti, T., & Sukmadilaga, C. (2019). Tantangan pengelolaan dana zakat di Indonesia dan literasi zakat. AKUNTABEL, 16(2), 222–229.Alam, A. (2018). Permasalahan dan solusi pengelolaan zakat di Indonesia. Jurnal Manajemen, 9(2), 128–136.Amarodin, M. (2020). Modernisasi penghimpunan dana zakat di era industri 4.0. Jurnal Eksyar (Jurnal Ekonomi Syariah), 07(01), 65–79.Antonio, M. S., Laela, S. F., Mukhlas, D., & Ghifari, A. (2020). Optimizing Zakat Collection in the Digital Era: Muzakki's perception. Jurnal Dinamika Akuntansi dan Bisnis, 7(2), 235–254. https://doi.org/10.24815/jdab.v7i2.16597Astuti, M. (2018). Peran PSAK 109 dalam peningkatan akuntabilitas dan transparansi pelaporan zakat di Indonesia. Jurnal Akuntansi Bisnis, 10(1). https://doi.org/10.30813/jab.v10i1.986Aziz, M. (2017). Strategi pengelolaan zakat secara produktif pada lembaga amil zakat dalam tinjauan UU RI nomor 23 tahun 2011 tentang pengelolaan zakat (Studi kasus di Nurul Hayat kantor cabang Tuban periode 2015-2016). Al Hikmah: Jurnal Studi Keislaman, 7(1).Bahtiar, E. (2020). SWOT analysis of the Mempawah regency baznas development strategy in collecting zakat funds. JIL: Journal of Islamic Law, 1(1), 1-12. https://doi.org/10.24260/jil.v1i1.12Bergsteiner, H., & Avery, G. C. (2011). Responsibility and accountability: Towards an integrative process model. International Business & Economics Research Journal (IBER), 2(2), 37-63. https://doi.org/10.19030/iber.v2i2.3763Canggih, C., Fikriyah, K., & Yasin, A. (2017). Potensi dan realisasi dana zakat indonesia. Al-Uqud: Journal of Islamic Economics, 1(1), 14-26. https://doi.org/10.26740/jie.v1n1.p14-26Chaniago, S. A. (2014). Perumusan manajemen strategi pemberdayaan zakat. Jurnal Hukum Islam, 12(1), 87–101. https://doi.org/10.28918/jhi.v12i1.529Coryna, I. A., & Tanjung, H. (2015). Formulasi strategi penghimpunan zakat oleh badan amil zakat nasional (BAZNAS). Al-Muzara'ah, 3(2), 158–179. https://doi.org/10.29244/jam.3.2.158-179Endahwati, Y. D. (2014). Akuntabilitas pengelolaan zakat, infaq, dan shadaqah (ZIS). Jurnal Ilmiah Akuntansi dan Humanika, 4(1), 1356–1379. https://doi.org/http://dx.doi.org/10.23887/jinah.v4i1.4599Fadilah, S. (2012). Penerapan good governance pada lembaga amil zakat (LAZ). Diakses dari http://103.78.195.33/bitstream/handle/123456789/26651/bk_fadilah_pgglaz_unpad press_sv.pdf?sequence=1&isAllowed=yFahlefi, R. (2018). Inklusi keuangan syariah melalui inovasi fintech di sektor filantropi. Batusangkar International Conference III, 205–212.Friantoro, D., & Zaki, K. (2019). Do we need financial technology for collecting zakat? International Conference of Zakat. https://doi.org/10.37706/iconz.2018.133Hamidi, N., & Suwardi, E. (2013). Analisis akuntabilitas publik organisasi pengelola zakat berdasarkan aspek pengendalian intern dan budaya organisasi (Survei pada organisasi pengelola zakat di Indonesia). Ekbisi, 8(1), 13-34.Hendarsyah, D. (2013). Digitalisasi dan sistem otomasi perpustakaan STIE syari'ah Bengkalis. Iqtishaduna: Jurnal Ilmiah Ekonomi Kita, 2(1), 443–460. https://doi.org/10.46367/iqtishaduna.v2i1.30Huda, N., & Sawarjuwono, T. (2013). Akuntabilitas pengelolaan zakat melalui pendekatan modifikasi action research. Jurnal Akuntansi Multiparadigma, 4(3), 376-388. https://doi.org/10.18202/jamal.2013.12.7204Karim, N. K., Sasanti, E. E., Lenap, I. P., & Sari, N. K. (2019). Transparansi dan akuntabilitas pengelolaan dana zakat berbasis website pada lembaga pengelola zakat di Indonesia. Jurnal Riset Akuntansi Aksioma, 18(2), 13-28.Khan, K. S., Kunz, R., Kleijnen, J., & Antes, G. (2003). Five steps to conducting a systematic review. Journal of the Royal Society of Medicine, 96(3), 118–121. https://doi.org/10.1258/jrsm.96.3.118Kholis, Nur, S., Andriansyah, S., & Yuli, I. (2014). Profile of Islamic philantrophy in Yogyakarta Special Province. La Riba, 7(1), 61–84.Kholmi, M. (2017). Akuntabilitas pengelolaan alokasi dana desa (Studi di Desa Kedungbetik Kecamatan Kesamben Kabupaten Jombang). Journal of Innovation in Business and Economics, 7(2), 143. https://doi.org/10.22219/jibe.vol7.no2.143-152Lee, D. K. C., & Teo, E. G. S. (2015). Emergence of finTech and the LASIC principles. Journal of Financial Perspectives, 3(3), 1-26.Mubarok, A., & Fanani, B. (2014). Penghimpunan dana zakat nasional (Potensi, realisasi dan peran penting organisasi pengelola zakat). Permana, 5(2), 7-16.Muhammad, S. A., & Saad, R. A. J. (2016). The impact of public governance quality, accountability and Effectiveness on intention to pay zakat: Moderating effect of trust on zakat institution. International Journal of Management Research and Reviews, 6(1), 1-8.Nasution, A. H., Nisa, K., Zakariah, M., & Zakariah, M. A. (2018). Kajian strategi zakat, infaq dan shadaqah dalam pemberdayaan umat. Jurnal Ekonomi Bisnis Syariah, 1(1), 22–37. https://doi.org/10.5281/zenodo.1148842Nikmatuniayah, M. (2015). Manajemen strategis pengelolaan zakat lembaga amil zakat infak dan shodaqoh Baiturrahman (Lazisba) Semarang. Seminar Nasional Riset Terapan (SENASSET), 1(1), 563–578.Nilawati, N., & Rijal, K. (2019). Potensi pembayaran zakat secara online dan offline serta realisasi dana zakat indonesia. I-ECONOMICS: A Research Journal on Islamic Economics, 5(2), 116–131.Nurhasanah, S. (2018). Akuntabilitas laporan keuangan lembaga amil zakat dalam memaksimalkan potensi zakat. Jurnal Ilmu Akuntansi, 11(2), 327–348.Parvez, R. K. (2021). Analysing the AAOIFI Sharīʿah standard on zakat. Journal of Money Laundering Control, Vol. ahead-of-print No. ahead-of-print. https://doi.org/10.1108/JMLC-10-2020-0117Pratama, Y. C. (2015). Peran zakat dalam penanggulangan kemiskinan (Studi kasus: Program zakat produktif pada Badan Amil Zakat Nasional). Tauhidinomics: Journal of Islamic Banking and Economics, 1(1), 93–104.Qadri, R. A. (2019). Menakar model pembelian langsung rumah negara di indonesia. Jurnal Pajak dan Keuangan Negara, 1(1), 1–20.Rahmani, H. F., & Erpurini, W. (2020). Pengaruh kepercayaan dan penerapan teknologi aplikasi zakat terhadap minat masyarakat dalam berzakat. Jurnal Sains Sosio Humaniora, 4(2), 639–648. https://doi.org/10.22437/jssh.v4i2.11324Rahmayati, A. (2015). Filantropi Islam: Model dan akuntabilitas. Seminar Nasional dan The 2nd Call for Syariah Paper, 17–29.Rohim, A. N. (2019). Optimalisasi penghimpunan zakat melalui digital fundraising. Al-Balagh: Jurnal Dakwah dan Komunikasi, 4(1), 59–90.Santoso, I. R. (2019). Strategy for optimizing zakat digitalization in alleviation poverty in the era of industrial revolution 4.0. Ikonomika, 4(1), 35–52. https://doi.org/10.24042/febi.v4i1.3942Suginam. (2020). Akuntabilitas pengelolaan dana zakat berbasis teknologi informasi pada organisasi pengelola zakat (OPZ). ARBITRASE: Journal of Economics and Accounting, 1(1), 86–89.Syafiq, A. (2017). Urgensi peningkatan akuntabilitas lembaga pengelola zakat. ZISWAF: Jurnal Zakat Dan Wakaf, 3(1), 18–39.Thornton, J. B., & Thornton, E. (2013). Assessing state government financial transparency websites. Reference Services Review, 41(2), 366–387. https://doi.org/10.1108/00907321311326273Triyuwono, I. (2001). Metafora zakat dan shari'ah enterprise theory sebagai konsep dasar dalam membentuk akuntansi syari'ah. Jurnal Akuntansi dan Auditing Indonesia, 5(2), 131–145.Utami, P., Suryanto, T., Ghofur, R. A., & Nasor, M. (2020). Refleksi hukum zakat digital pada baznas dalam rangka peningkatan kesejahteraan mustahik. Jurnal Surya Kencana Satu: Dinamika Masalah Hukum dan Keadilan, 11(1), 53–70.Warno, W. (2016). Akuntabilitas pengelolaan zakat infak dan shodaqoh (ZIS) dalam penerapan UU pengelolaan zakat No. 23 tahun 2011 pada lembaga pengelola zakat. Jurnal STIE Semarang, 8(2), 157-179.Wikaningtyas, S. U., & Sulastiningsih, S. (2015). Strategi penghimpunan dana zakat pada organisasi pengelola zakat di Kabupaten Bantul. Jurnal Riset Manajemen Sekolah Tinggi Ilmu Ekonomi Widya Wiwaha Program Magister Manajemen, 2(2), 129–140. https://doi.org/10.32477/jrm.v2i2.169Zubaidah, S., & Afifah, A. (2020). Development of zakat management digitalization in Indonesia. International Conference of Zakat, 459–468. https://doi.org/10.37706/iconz.2020.227Zuccolotto, R., & Teixeira, M. A. C. (2014). The causes of fiscal transparency: Evidence in the Brazilian states. Revista Contabilidade & Finanças, 25(66), 242–254. https://doi.org/10.1590/1808-057x201410820Zumrotun, S. (2016). Peluang, tantangan, dan stategi zakat dalam pemberdayaan ekonomi umat. Jurnal Hukum Islam, 14(1), 49-63. https://doi.org/10.28918/jhi.v0i0.669
In the 15-years I have served in the United States Army, the focal point of my tactical and academic study has been almost entirely centered on the Middle East and its unique cultural complexities. As an Infantryman, I was embroiled in the early efforts to prevent a Sunni-Shia civil war in post-invasion Iraq, while also hunting down al-Qaeda operatives under the leadership of Abu Musab al-Zarqawi. A year later, during General Patraeus's troop surge, I was in the urban sprawl of Northwest Baghdad fighting not only a Sunni insurgency, but also the Iranian-backed Jaysh al-Mahdi, comprised of local Shia militia groups. In 2010, I led a battalion reconnaissance team in the Arghandab River Valley of Afghanistan against the Taliban near the very birthplace of their Salafi-jihadist movement. In subsequent years, following my graduation from the Special Forces Qualification Course, I served in the 5th Special Forces Group (SFG) on a variety of missions in support of Operation Inherent Resolve in Turkey and Syria. As a fluent Arabic speaker, I was heavily involved in early efforts to train and equip the Free Syrian Army for its fight against the Islamic State. Following this deployment, I served as a liaison officer to the United States Embassy and Turkish General Staff in Ankara, having daily interaction with foreign dignitaries, defense attachés, and military officials in strategic level planning and coordination efforts. I culminated my time with 5th SFG as the assistant operations sergeant of a detachment fighting the Islamic State in Syria. My understanding of the culture of jihad, the various jihadist groups operating throughout the Central Command (CENTCOM) area of responsibility, and the intricacy of Middle Eastern problem sets as a whole, has come from years of dedicated cultural analysis, in-depth study of Sunni and Shia Islam, and field experience from the strategic to the tactical level. It is because of this experience that I am compelled to discuss the culture of jihad in the 21st Century. ; Winner of the 2020 Friends of the Kreitzberg Library Award for Outstanding Research in the College of Graduate and Continuing Studies Degree Completion category. ; 1 The Culture of Jihad in the 21st Century Michael J. Bearden Norwich University SOCI401: Cultural and Anthropology Studies Dr. Timothy Maynard April 30, 2020 2 The Culture of Jihad in the 21st Century In the 15-years I have served in the United States Army, the focal point of my tactical and academic study has been almost entirely centered on the Middle East and its unique cultural complexities. As an Infantryman, I was embroiled in the early efforts to prevent a Sunni-Shia civil war in post-invasion Iraq, while also hunting down al-Qaeda operatives under the leadership of Abu Musab al-Zarqawi. A year later, during General Patraeus's troop surge, I was in the urban sprawl of Northwest Baghdad fighting not only a Sunni insurgency, but also the Iranian-backed Jaysh al-Mahdi, comprised of local Shia militia groups. In 2010, I led a battalion reconnaissance team in the Arghandab River Valley of Afghanistan against the Taliban near the very birthplace of their Salafi-jihadist movement. In subsequent years, following my graduation from the Special Forces Qualification Course, I served in the 5th Special Forces Group (SFG) on a variety of missions in support of Operation Inherent Resolve in Turkey and Syria. As a fluent Arabic speaker, I was heavily involved in early efforts to train and equip the Free Syrian Army for its fight against the Islamic State. Following this deployment, I served as a liaison officer to the United States Embassy and Turkish General Staff in Ankara, having daily interaction with foreign dignitaries, defense attachés, and military officials in strategic level planning and coordination efforts. I culminated my time with 5th SFG as the assistant operations sergeant of a detachment fighting the Islamic State in Syria. My understanding of the culture of jihad, the various jihadist groups operating throughout the Central Command (CENTCOM) area of responsibility, and the intricacy of Middle Eastern problem sets as a whole, has come from years of dedicated cultural analysis, in-depth study of Sunni and Shia Islam, and field experience from the strategic to the tactical level. It is because of this experience that I am compelled to discuss the culture of jihad in the 21st Century. 3 Since its beginning in circa 610 CE, when the prophet Muhammad ibn Abdullah was visited by the angel Gabriel in a cave near Mecca, Islam has shaken the foundations of the Middle East and remained in a state of near-perpetual conflict with the Western world. Islam is an Arabic term most closely relating to the English words submission or surrender. Mujahedeen, or holy warriors, spread this new religion by the sword throughout Asia, forcing the "submission" of thousands, and have hardly been at peace with their neighbors since. Centuries later, in the two decades following the attacks on the World Trade Center and Pentagon in the United States, radical Islam's stance against the West has altered the diplomatic landscape between the world's great powers, fundamentally changed the United States' national strategic direction, and caused youth from all walks of life to sacrifice the best years of their lives in holy war to protect the supra-national community of Islam. From the invasion of Afghanistan to the subsequent invasions of Iraq and Syria to the ongoing peace talks with the Taliban, diplomatic and military efforts to eradicate jihadists from the Middle East have to-date been nearly ineffectual. Not only have these efforts failed to contain or defeat jihad, but at times have served to strengthen Islamic extremists' resolve in their call to arms against the West. Because jihad is such a fundamental part of the Islamic faith, it can never be "defeated" in the sense of traditional military eradication of an enemy force, but it can be confronted, contained, or refocused, as this paper will address. I argue that enabling local solutions and promoting education, alongside tailored surgical strike and security cooperation operations where necessary, are the keys to confronting, containing, and countering jihad. 4 Background Defining Jihad and Salafism Jihad is a transliterated form of the Arabic word meaning to struggle or to strive. In the traditional teachings of the Islamic faith, jihad is broken into two distinct categories: Greater jihad and lesser jihad. Greater jihad includes the personal struggle against selfish desires, emphasizing discipline and morality, as well as the struggle against Satan and the forces of evil. It includes jihad of the heart, jihad of the mind, and jihad of the tongue, involving praise for those who follow the will of Allah and correction for those who have gone astray (Gorka, 2016). The second category, lesser jihad, is viewed as the struggle against the enemies of Islam and the defense of its people. Lesser jihad is commonly referred to as Jihad of the Sword. Gorka (p. 60) reveals that, over time, this category of jihad has been used as justification for at least seven different subsets of holy war: 1. Using holy war to build an empire 2. Going after apostate regimes or individuals 3. Revolting against non-pious Muslim leaders 4. Fighting against the forces of imperialism in Muslim lands 5. Countering the West's pagan influence 6. Guerrilla warfare against a foreign invader 7. Using jihad as justification for terrorist attacks against civilian targets In a broad sense, lesser jihad can be viewed as offensive or defensive martial action. On the offensive side, jihadists use religion to justify building an empire, such as the Islamic State, attack apostate regimes, like those of the Taliban against Afghan government forces, and use terrorism against civilians, like the attacks on the World Trade Center. This offensive action 5 often takes jihadists beyond the borders of the ummah, or the people of Islam, striking fear into hearts of unbelievers around the globe. The defensive variety, especially in recent history, has most often correlated directly with the use of guerrilla warfare against foreign invaders, such as al-Qaeda's attacks on the international military coalitions that invaded Afghanistan and Iraq. This radical view of Islam is mostly practiced by those who follow the way of the Salafi, or the pious predecessors from the time of Muhammad, who experienced Islam in its purest form. It is believed that the first three generations who practiced the teachings of the prophet Muhammad are the ones who all Muslims thereafter should try to emulate. Themes of Salafism focus on complete adherence to sharia law, the fight against apostate Muslim regimes, and the spread and protection of Islam and its followers. At its core, Salafism is a very traditionalist view of Islam and has been practiced by multiple 21st Century terrorist organizations. The terms jihad and Salafi have shared such a close relationship in the last few decades that they have become nearly synonymous, at times described as Salafi-Jihadism or Jihadi-Salafism (Gorka, 2016; Nilsson, 2019) What Cultural Influences Lead One to the Path of Jihad? Before the attacks on 9/11, the largest call to jihad answered by the international Muslim community was in response to the Soviet invasion of Afghanistan in 1979. Stopping the spread of communism and defending the ummah against the atrocities of Russian ground forces was seen as a noble and just cause for young Muslim men, and not just among Muslims (Gorka, 2016; Nilsson, 2019). Many nations, including the United States, funded, equipped, and trained the Afghan mujahedeen (those who conduct jihad) for the fight against the Soviet empire. Jihad in the 21st Century has been viewed in a much different light, as it is most closely associated with acts of extreme violence against Western nations. While the piles of rubble that used to be the 6 World Trade Center smoldered, and a gaping hole scarred the wall of the Pentagon, people of the world were forced to ask themselves, "How could a person do this? Why would someone take their own lives and thousands of others in the name of Allah?" Religious Justification for Jihad. Though jihad has become almost entirely associated with Islamic holy war, the term itself is still simply the Arabic word for striving. Struggling against one's selfish desires, striving to maintain traditional values, and defending a community against a common enemy are not just Islamic concepts, they are universal to most tightly-knit cultures. Similarly, Christians and Jews are taught self-discipline, adherence to moral codes, and defending their belief against enemies of their faith. So, why has the Islamic flavor of this common cultural theme become so violent, causing deep unrest around the world in our modern era? Verses from the Qur'an can begin to unpack why horrific public executions, suicide bombings, and advocating for generalized violence against non-Muslims may be justifiable in jihadist culture. The Qur'an (2015) lays out the following decree in chapter 9, verse 29: Fight those from among the People of the Book who believe not in Allah, nor in the Last Day, nor hold as unlawful what Allah and His Messenger have declared to be unlawful, nor follow the true religion, until they pay the tax with their own hand and acknowledge their subjection (p. 208). My personal study of Islam and conversations with Muslims in the field revealed that this bit of prose has been used as motivation and justification for jihad by groups like al-Qaeda, the Taliban, the Islamic State, and Hay'at Tahrir al-Sham of our modern age. Some of the following themes are evident in the translation: 7 • Jews and Christians are recognized as People of the Book, but are required to accept the following—Allah as the one true god, sharia as the acceptable law, and Islam as the one true religion. • If Jews and Christians refuse to accept these statutes, they must pay a tax called the jizyah to show their subjugation. • If they refuse to do either of these, they are to be put to the sword (p. 208). Salafi-jihadist groups such as the Taliban and Islamic State have tried to revive the jizyah tax in areas under their control. Likewise, hundreds of Christians, Jews, and even Muslims who refuse to adhere to strict sharia law have been publicly executed. This vehement enforcement of arcane Islamic law is seen as a return to the purest form of Islam, as pious as the first few generations who followed the Prophet Muhammad. Another common religious cultural theme that ties these jihadist organizations together is a message of religious oppression. They preach to young Muslims that the Islamic world is under siege by the West and that their god, their value systems, and their way of life are being threatened by the evils of capitalism and democracy (Venhaus, 2010). In joining organizations like al-Qaeda or the Islamic State, young men from across the globe find a sense of purpose and direction in their cause to protect the ummah. This theme is manifested in the teachings of Anwar al-Awlaki, the spiritual leader of al-Qaeda and the father of home-grown terrorism in the United States. He calls on Muslims living among those in the West: How can your conscience allow you to live in peaceful coexistence with a nation that is responsible for the tyranny and crimes committed against your own brothers and sisters? How can you have your loyalty to a government that is leading the war against Islam and Muslims? Hence, my advice to you is this, you have two choices: either hijra [migration 8 to an Islamic land] or jihad. You either leave or you fight. You leave and live among Muslims or you stay behind and fight with your hand, your wealth, and your word. I specifically invite the youth to either fight in the West or join their brothers on the fronts of jihad: Afghanistan, Iraq, and Somalia (as cited in Gorka, 2016). This way of thinking is also captured in chapter 9, verse 5 of the Qur'an (2015): Kill the idolaters wherever you find them and take them prisoners, and beleaguer them, and lie in wait for them at every place of ambush. But if they repent and observe Prayer and pay the Zakat, then leave their way free (p. 204). When taken literally, as they are by followers of Salafi-jihad, scriptures such as these leave no choice. To these men who have committed themselves fully to the ways of the pious ones, they are compelled to become shahid, or martyrs in the protection of the ummah. The Qur'an promises paradise for those who do: Surely, Allah has purchased of the believers their persons and their property in return for the Garden they shall have; they fight in the cause of Allah, and they slay and are slain—a promise the He has made incumbent on Himself in the Torah, and the Gospel, and the Qur'an. And who is more faithful to his promise than Allah? Rejoice, then, in your bargain which you have made with Him; and that it is which is the supreme triumph (p. 222). The concept of becoming a martyr in the struggle for Islam is romanticized by jihadist groups, like al-Qaeda and the Islamic State, and even state governments in local programming. In Lebanon, Mothers of Martyrs are interviewed to share the stories of their sons' glorious end while fighting abroad against the infidels (Venhaus, 2010). The Qur'an itself calls this sacrifice the supreme triumph for a jihadist, striving for the glory of Allah. 9 Though enforcing the jizyah, publicly executing those who do not follow sharia law, and seeking opportunities to kill infidels through suicide attacks represent a very small, extremist cultural sect of Islam, each of these practices is still justifiable if one looks to the Qur'an. This could be viewed as no different than a rural Pentecostal church in the Deep South who maintains strict standards for how women must dress and act: it all comes down to interpretation and a community's willingness to subjugate themselves to these standards. Spiritual leaders of jihadist groups in the 21st Century have used the Qur'an as continued justification for a variety of cruel, inhumane, and brutal actions that served to shock the West. The holy book of Islam acts as the essential glue, binding together all facets of Arab and Islamic culture. Artistic Inspiration for Jihad. A far cry from the harsh proclamations of the Qur'an, Arabic poetry predates Islam by centuries and serves as a bedrock of Arabic culture across the Middle East. Early desert nomads composed poems mostly in mono-rhyme and in one of sixteen standard canonical measures, which made them easy to commit to memory (Creswell & Haykel, 2015). Naturally, this beautiful form of cultural expression has found a home in the modern jihadist movement, where it has become an inspiration for new recruits to join the cause and crucial in the sustainment of those already fighting infidels abroad. Creswell and Haykel assert that although analysts have generally ignored this facet of jihadist culture, it is woven deeply into the fabric of modern Islamic extremism. Osama bin Laden, most recognized as the former head of al-Qaeda, was also a highly-celebrated jihadist poet. Without question, his lyrical genius inspired young Arabs with stories of a return to the heroic and chivalrous past of Islam. One of his most famous works celebrates the martyrdom of the 9/11 hijackers. This is a theme among modern jihadist poetry, which preserves the tales of suicide bombers, the conquered apostate regimes of Iraq and Syria, and the glories of jihadist heroes (Creswell & Haykel). Likewise, in a 10 group of individuals who have each traveled far from home to defend Islam against the kuffar, these poems help to establish a sense of cultural identity, strengthening their wartime bond and solidifying their resolve. In seeing the videos of the Islamic State as they carved a path of destruction across large swathes of Iraq in early 2014, it may be difficult for one to believe that its members were motivated by the rhythmic lines of jihadist poetry. It is hard to accept that the same young fighter who is willing to behead an infidel for all the free world to see, could also be found passionately reciting lines celebrating the glorious return of an Islamic caliphate. During its rise, the Islamic State capitalized on the lyrical talent of a Damascus-born woman named Ahlam al-Nasr. In her first broadcast, called the Blaze of Truth, she sang each one of her 107 works a cappella, in accordance with the Islamic State's ban on musical instruments. The video was uploaded to Youtube, receiving thousands of views and further shares on multiple social media platforms (Creswell & Haykel, 2015). In the early days of the group's brutal campaign in Iraq, al-Nasr celebrated victory in Mosul as a new dawn for the country: "Ask Mosul, city of Islam, about the lions— how their fierce struggle brought liberation. The land of glory has shed its humiliation and defeat and put on the raiment of splendor" (as cited in Creswell & Haykel, 2015). Her choice of words helps one sense her deep passion for jihad, hidden within the lines. Mujahedeen are called lions and liberators. Mosul is called both a city of Islam and a land of 11 glory that, because of its liberation, has been released from the chains of shame and can now live in the splendor and pride of its former renown. Poetry has succored those serving in times of war for hundreds, even thousands of years. In the same manner, this key element of artistic cultural expression has helped bind together the modern jihadi movement, capturing the heroic deeds of martyrs who would otherwise remain nameless and unrecognized by the outside world. Serving in lands far away from home, young jihadists find inspiration, strength, and a renewed sense of identity in these haunting bits of rhyme. Social Pressure to Join Jihad. Abdullah Anas was an Algerian who served as one of the mujahedeen in Afghanistan in the 1980s and spent several years studying under Abdullah Azzam, the Palestinian "Father of Resistance to the Soviets" (Gall, 2020). Working to help Algerians achieve nonviolent change in their government, Anas, now in his 60s, has spent a life living and working among jihadists. To Anas, jihad is a fundamental principle of Muslim culture through which mujahedeen receive rewards in heaven: "I will never denounce jihad. As a Muslim, I know this to be a noble deed—where man can be the most beastly" (Gall). In a study of three Swedish jihadists, with experiences ranging from 1980s Afghanistan to the modern fight in Syria, Nilsson (2019) suggests that one of the fundamental social justifications for joining jihad is the sense that Islam and Muslims are collectively under attack. This, again, is a theme that applies to more than just the modern jihadist movement: Americans lined up in droves outside recruiting stations following the attacks on Pearl Harbor and decades later after September 11, 2001. Following the invasion of Afghanistan and Iraq, many Muslims from around the world began to see this not as just the West going after the 9/11 conspirators, but as a global attack on Islam. Each day, fresh news stories of coalition soldiers' crimes against 12 Muslim civilians and pictures of burning villages continued to motivate men to join the fight to protect the ummah from the foreign invaders. Nilsson contends that since most jihadists are very young, in their teens and early twenties, they are very susceptible to the influences of close friends and social groups. Safet, a young Muslim living in Sweden, was pressured by a friend to join the Islamic State in Syria, saying that he became convinced by his friend Ahmed that the group was fighting to protect Muslims (Nilsson). However, after realizing that the Islamic State was actually killing other Muslims in a practice called takfir, or excommunication, Safet became disillusioned and returned to Sweden (Nilsson). From the fight against the foreign invaders in the early 2000s in Afghanistan and Iraq, to the struggle for the establishment of an Islamic caliphate in 2015, it seems jihadists have most often been motivated by the need to protect the international Muslim community. Aside from the social responsibility of defending their faith and people, the need for adventure also seems to permeate the ideations of young men seeking to join a jihadist group. One of Nilsson's (2019) most interesting theories is that jihad is not the radicalization of Islam, but rather the Islamization of radicalism. Individuals who are already naturally predisposed to such adventurous or nihilistic behavior get caught up in the social dynamics of their time, ending up in a jihadist movement. Venhaus (2010) explains that in interviews with over 2,000 al-Qaeda prisoners from Iraq to Guantanamo Bay, he found that young Muslim men sought the cause of jihad for a number of normal social pressures felt by normal teens worldwide: "Revenge seekers need an outlet for their frustration, status seekers need recognition, identity seekers need a group to join, and thrill seekers need adventure" (Venhaus). The Effects of Social Media and Technology on Jihad. In the modern era, news is no longer bound by the time it takes for an article to be published, printed, and distributed across 13 great distance in a community. Social media platforms like Facebook, Youtube, Twitter, and Instagram have made sharing news instantaneous. Additionally, the advent of the smartphone, which acts simultaneously as a hand-held computer, high definition camera, and telephone with nearly world-wide coverage has forever changed the media landscape. In the era of modern jihad, one can post a single video that moves the minds of thousands in a matter of seconds. Following the 2003 invasion of Iraq to topple Saddam Hussein's regime, news stories of atrocity among the efforts of coalition troops over the next decade served to further the cause of local and foreign jihadists to protect the ummah from these invaders. Accidental bombing of civilians, mistreatment of the prisoners at Abu Ghraib, and a general ignorance toward Muslim culture were fueled by social media and smartphone technology. Venhaus (2010) claims that throughout this early phase of the war in Iraq, al-Qaeda very rarely had to actively recruit, their global brand was aggressively promoted through satellite television, internet chat rooms, and social media platforms; willing candidates sought them out. This use of media continued to be perfected by jihadist organizations like the Islamic State, who published a digital magazine called Dabiq, named for the ideological capital of the proposed caliphate, which rallied Muslims to jihad through stories of glory and heroism in the cause for Islam. The Islamic State also posted grisly execution videos, with stunning music and production value, including super high-definition shots of their brutality. Publications and videos such as these could be copied, saved, shared, and re-shared before any sort of government intervention could stop them. Creswell and Haykel (2015) reveal that jihadists were running a massive, secret network of social media websites and fake accounts that could be rapidly assembled and dissembled by hackers. The effects of social media and technology on modern jihadist culture are easy to understand, but challenging to measure in scope and reach. Just as easily as videos of Islamic 14 State propaganda or poetry can be shared, so too can stories of coalition force atrocities in Afghanistan and Iraq. This has put strategists in a unique position, where it is nearly impossible to control the narrative. Unfortunately, the story that breaks first is still the one that is liked and shared the most, even if the truth comes out after. Effects of Western Culture on Jihad. Rapid globalization, including the widespread diffusion of the internet and technology into the Middle East in the last two decades has continued to foment jihadist hatred for the West. Personal conversations with multiple Muslims in Iraq and Afghanistan revealed that the decadence, lavish richness, and sinful lifestyles portrayed by Western movies and media served to fuel the fires of disdain among the pious Salafi-jihadists. Additionally, Muslim men living in Western nations following the attacks on the World Trade Center were ostracized and feared by society, often leading them to an eventual radicalization process. Being denied a peaceful coexistence because of continued Western misperception, caused many young Muslims to become angry and seek community and brotherhood among other Muslims experiencing the same problems. Venhaus (2010) notes that out of the over 2,000 captured jihadists interviewed, more than 30 per cent of them sought al-Qaeda because they were angry. Under the tutelage of local al-Qaeda mentors, the frustrations of these young men were then turned upon their neighbors through careful instruction and manipulation. They were taught to see the West as the enemy of Islam, with hundreds of the ummah being harmed by their military coalitions in Afghanistan and Iraq each day. They were instructed in the ways of the pious ones who came before them, inspiring them to turn from the sinfulness of their Western neighbors and take pride in their newfound self-discipline and righteousness in the eyes of Allah. Eventually, many of these young men would travel to their 15 ancestral homelands to join the struggle, or conduct terrorist attacks on their own Western communities. Analysis A Unique Challenge Given the litany of reasons one might join jihad, the incredibly complex cultural and social environment, and the fluidity of the modern jihadist movement, how can the United States begin to contain this problem? The reasons one individual might join a jihadist cause are as various and sundry as why one might choose to join any movement or profession over another. As Nilsson (2019) and Venhaus (2010) have detailed, there appears to be no singular marker: one could be an extremely religious or a passive Muslim, rich or poor, single or married with a family, have a completely stable social life or be isolated with no friends. Jihadists can be from any country, any walk of life, and usually do not widely broadcast their intentions prior to taking part in acts of violence for the cause of Islam. It is because of the near-impossibility of clearly identifying a pattern of distinguishable cultural markers that make it such a challenge for the United States government and its allies to address the threat of jihad. Targeting an individual before they become a jihadist or before they commit a terrorist act has been one of the most formidable challenges of our time for military and law enforcement professionals alike. Usually, the much simpler job is finding a jihadist who has allowed their communications discipline to slip before an act, or catching them in a pitched battle on foreign soil. In order to protect citizens of the West and East alike against jihadists' aims, the United States Government must be prepared to confront, contain, and counter the jihadist narrative "left of bang," before an attack occurs. 16 The Global War on Terrorism: Taking the Fight to the Jihadists. In the months that followed September 11, 2001, President George W. Bush deployed Central Intelligence Agency (CIA) paramilitary officers and US Special Operations Forces (SOF) to find, fix, and finish pockets of al-Qaeda militants being harbored by the Taliban in Afghanistan. A fierce campaign of relentless aerial bombardment and mounted assaults by the forces of the Afghan Northern Alliance led to a swift and decisive defeat of al-Qaeda and the Taliban. With Kabul and Kandahar in allied hands, and an interim government established under the leadership of the Pashtun Hamid Karzai, the future of a free and prosperous Afghanistan seemed assured, but what came to be known as The Long War had only just begun. Trillions of dollars, thousands of lives, and 19 years later, the United States and its allies have been forced to the negotiating table with the Salafi-jihadist Taliban. Likewise, after Saddam Hussein's continued disregard for international law, threats against the United States, and open violence against his own people, the administration of President Bush decided again to pursue a military option. Much like Afghanistan, the coalition was led by CIA operatives and SOF operators, coordinating airstrikes on key positions in a tactical display of American firepower affectionately titled Shock and Awe. However, unlike Afghanistan, a massive conventional invasion followed the bombing campaign, bent on toppling the Baathist regime and finding Saddam's chemical weapons stockpiles. What followed was a series of policy failures, leading to a steady influx of jihadists partnering with local insurgents seeking to oust the foreign invaders and protect the ummah from the atrocities of the kuffar. In my professional opinion, Iraq is still recovering from the decade-long military occupation, cleaning up the destruction left by the Islamic State, and on the brink of civil war due to concerns about being an Iranian puppet state. 17 Ineffective Military Methods to Combat Jihad Operation Iraqi Freedom. During my first combat rotation as an Infantryman in the Triangle of Death in southern Iraq in 2005-2006, I experienced the initial rumblings of a civil war between the Sunni and Shia Muslims in Iraq, each wrestling for power in a post-Saddam world. I was also witness to the inundation of foreign jihadists, joining the ranks of al-Qaeda in Iraq under the leadership of Abu Musab al-Zarqawi, who at times headquartered in my area of operations. As I analyze our highly-kinetic and aggressive initial campaigns years later, I can see that the coalition's fight, first against Saddam, then against al-Qaeda, only bolstered jihadist motivation. In being a foreign invader, we inadvertently created a jihadist resistance movement, bent on the removal of their occupiers. Kilcullen (2010) explains this dilemma by explaining that focusing on the wrong metrics in a fight against insurgents can be deceptive: If you kill 20 insurgents, they may have 40 relatives who are now in a blood feud with your unit and are compelled to take revenge. Again in 2007-2008, I was deployed to Iraq as an Infantry squad leader to the sacred city of Khadimiyah in Northwest Baghadad. This was during the famous troop surge, meant to fix the ongoing problems with stability throughout the country. Being in the home of the beautiful Shrine of the Seventh Imam, it was a predominantly Shia area. Over the course of 15 months, my unit fought several engagements against Iranian-backed Shia militias and worked on project after project to strengthen local civil infrastructure, all while maintaining the utmost discretion against damaging homes or creating civilian casualties. Yet again, although we had conducted a nearly perfect counterinsurgency fight, it seemed that Kilcullen's insurgent math still applied: Fighting the jihadists only served to create more unrest within the population, no matter if we were restoring essential services and reducing damage to homes or not. 18 Operation Enduring Freedom. Nearly a decade after the fall of al-Qaeda and its Taliban hosts, I was deployed to the mountains of Afghanistan from 2010-2011. Stationed along the Arghandab River, just north of Kandahar, we were in the heart of the Pashtun Taliban. Again, the same story remained true: We fought the Taliban jihadists almost daily, but could not seem to win over the true key terrain in a counterinsurgency fight: The hearts and minds of the people. The Taliban would harass our unit's base of operations with a few pop shots as we called them, which would unleash a massive response in firepower and resources. Thousands of rounds of machine gun ammunition would be fired into the farm fields surrounding our Combat Out Post (COP), squads would be sent in pursuit of the attackers, and helicopters would spend hours scouring the terrain in an attempt to heap justice on the insurgents. This massive effort against so few served to erode the unit's motivation, exhaust our supplies, and alienate the civilian population whose homes and fields had been damaged in the process. Reflections on Personal Combat Experience. After years of combat experience and deeply studying Muslim culture, I can now see how the mistakes the coalitions made early-on in both operations only fueled the fires of insurgency, resistance to foreign occupiers, and generalized hatred for the West. Porch (2013) argues brilliantly that US counterinsurgency doctrine made the same mistake as its imperialistic predecessors of centuries before: Believing that military action was a proper vehicle for providing Middle Easterners with Western values, as well as a foundation for governance, social programs, and economic transformation in a region. This became evident in my own experience, realizing that no matter what sort of social, infrastructure, or economic programs ran alongside our military efforts, the people of both Afghanistan and Iraq felt the enormous social weight of being occupied by a foreign power, rendering these efforts nearly ineffectual. On the contrary, local and foreign jihadist movements 19 capitalized on each and every mistake of coalition forces, increasing their recruitment and resolve against the West. Though our military may have been winning every major battle against the jihadists, our policy makers and field commanders made the fundamental mistake of believing that these non-Western nations lived in some sort of time-warp, in which the adoption of Western democracy, rule of law, and capitalism would allow them to thrive as a nation (Porch). Effective Military Methods to Combat Jihad Surgical Strike and Precision Targeting. A unique feature of the Global War on Terrorism was the US military's continued perfection of covert strike operations with surgical precision deep into enemy safe havens. This was put on display in the rout of al-Qaeda by CIA and SOF in Afghanistan, in the kill/capture missions against the Baathists in the deck of cards in Iraq, and later in the killing of Osama bin Laden in Pakistan and Sheik Abu Bakr al-Baghdadi in Iraq. Having the ability to appear out of nowhere in the middle of the night, kill or capture an intended target with zero damage to infrastructure or civilian casualties, and leave within minutes of arrival struck fear into the hearts and minds of jihadists across the globe. The success and efficacy of this type of operation was acknowledged in the 2015 National Military Strategy, which stated: "The best way to counter VEOs [violent extremist organizations] is by way of.military strengths such as ISR, precision strike [emphasis added], training, and logistical support" (p.11). Likewise, President Obama's massive expansion of the use of drones, which could watch individuals for days and execute a precise strike that only touched the intended target, has continued to sow fear and deny jihadists' freedom of maneuver on a global scale. The US military and its allies have only continued to master these types of operations throughout the 20 fights in Afghanistan, Iraq, Syria, and other locations. The jihadists know this, and realize that one wrong move at any time could mean disaster. Security Cooperation. An additional theme that has spelled the end for jihadists throughout the globe has been the training, advising, and equipping of security forces and partners within Afghanistan, Iraq, Syria, and other nations. Enabling the host-nation military to handle jihadist movements on their own helps the United States military work itself out of a job. US Army Special Forces are uniquely suited to accomplish this mission: With specialized training, language capability, and cultural understanding, they are able to train foreign security forces through a variety of Principle Tasks. These tasks include Foreign Internal Defense, which focuses on a holistic approach to internal security and protection of citizens against lawlessness and insurgency, and Security Force Assistance, which can be focused internally or externally against threats to a nation's stability and security. The success of these mission sets was evident in 2014, during my own experience with the Afghan Commando Kandaks' continued fight against the Taliban and in closely following the Iraqi Counterterrorism Service's efforts against the Islamic State. Both of these forces, built from the ground-up by US Army Special Forces have continually fortified weak conventional military force operations against jihadist groups in their respective nations. Muslim Youth Efforts Against Jihad Globalization, though it has been proven to bolster the jihadists' narrative against the West, has also been beneficial to the movement against jihad itself. Because youth of the world have access to technology that allows them to see the atrocities and lies associated with global jihadist organizations, they are beginning to turn the tide. During the Islamic State's rise to power in Iraq and Syria, Muslim youth from across Europe travelled to join the jihadists in their 21 fight against the West. However, groups of Muslim youth also spoke up to counter this narrative. In 2015 the Muslim Youth League, an anti-Islamic State cultural movement, declared a holy war against all extremist organizations (Dearden, 2015). The group called on all Muslims to stand united against those who have hijacked Islam and misrepresented the faith. Through engagement work in schools and communities, as well as a robust online campaign, the Muslim Youth League is fighting back against jihadist propaganda that bids young Muslims join the Islamic State and other extremist groups (Dearden). Since the time of this publication, the Muslim Youth League has spread to several countries throughout the Middle East, Asia, and Europe, each with their own social media presence, outreach programs, community events, and websites. Local Government Efforts Against Jihad In the years following the Islamic State's spread across Iraq and Syria, the United Kingdom has developed a robust strategy to help at-risk Muslims avoid the radicalization process. The program itself is called Contest, and includes four distinct categories: Prevent, Prepare, Protect, and Pursue (British Broadcasting Corporation [BBC], 2017). Police departments and social organizations have built relationships with doctors, faith leaders, teachers and others, who are required to report suspicious persons to the proper authorities. In response to these reporting requirements and recommendations, over 7,500 reports were filed between 2015-2016, with one in 10 being actionable intelligence for government and police forces (BBC). In 2015 alone, over 150 people, including 50 children, were kept from traveling to conflict zones in Iraq and Syria (BBC). The strategy has of course drawn criticism, for fear that it will further alienate Muslims from their local communities, but it presents as an excellent plan of action for identifying individuals who are at risk beyond just using traditional signals intelligence and 22 surveillance techniques. It does more than just target the individual, it also seeks to reform them through education, outreach, and community programs. Counterarguments You Can Kill an Idea. I have heard the opinion throughout my time in the military that jihad and the idea of Islamic supremacy can be completely eradicated. The example most often given is that Nazism, including the idea that the Aryan race was superior to all others, was effectively destroyed by a global military campaign. This argument is weak. The Nazis represented a very small portion of German culture, including among those serving in the military, so it was relatively easy to contain once there was an overwhelming military victory by the Allies. However, although the German Army of the 1940s was defeated militarily, the idea of white supremacy lives on in small social groups throughout the world to this day. The Ongoing Taliban Peace Talks. I have colleagues throughout the military who are convinced that the current negotiations with the Taliban are a key indicator of success in our two decades at war against the Salafi-jihadist group. The issue with this is that temporary cease fires have already been violated several times, leading one to believe that the strategic level leadership's messages are simply not reaching their subordinates or that local factions are not adhering to the agreement. Trusting that radical Muslim extremists will not allow Afghanistan to become a future safe haven for other jihadists, as it has in the past, is simply unrealistic. Believing some sort of quasi peace deal is going to miraculously pacify an organization that hates everything the West stands for is misguided. My own experiences throughout the Middle East have proven that the spirit of jihad and hatred will live on in Afghanistan. The Islamic State is Nearly Defeated. Multiple global media outlets continue to run stories about the dismantling of the Islamic State, as though the battle is won. Though Sheik Abu 23 Bakr al-Baghdadi has been killed, and the proposed Islamic caliphate was never fully realized, it would be naïve to think that the Islamic State's jihad is over. The movement will metastasize and take on new forms in other parts of the globe: It is already happening. Jihadists are continually leaving the battlefields of Iraq and Syria, headed back to their former homes in mainland Europe. As these individuals reenter the diaspora, the concern is that they will radicalize other individuals and conduct terrorist attacks within the continent. Conclusion The reasons an individual seeks to join a jihadist movement are deeply rooted in personal social dynamics, the security situation of their country, and a multitude of other religious, cultural, and economic factors. I agree with Venhaus (2010) and Gorka (2016) who assert that there is no singular military operation or strategy that can bring about a decisive victory against something so intangible as why one might join the modern jihadist movement. Use of the US military as a vehicle for the establishment of Western democracy and nation-building efforts in tribal nations like Afghanistan and Iraq only served to invigorate the jihadists' call to arms. Jihad is not something that can be eradicated completely by military force. Jihad must be confronted, contained, and countered through a comprehensive approach that empowers state and non-state actors to develop local solutions and directs expeditious military applications only where completely necessary. Recommendations Promote and Protect the Muslim Youth Leagues In order to truly create a cultural paradigm shift in Muslim youth at risk of radicalization, groups like the Muslim Youth League (BBC, 2017) should be promoted by governments worldwide as a bastion of true and peaceful Islam. While they should no doubt be supported, 24 governments must also protect these organizations from becoming targets for violent acts of terrorism or influence operations by jihadists. Through a combination of deep cultural understanding and positive messaging, the Muslim Youth League has already shown its effectiveness in the United Kingdom and beyond. Because the youth of each nation understand the social pressures and cultural influences that may lead one to seek jihad, they can effectively develop tailored, local solutions to persuade at-risk individuals. The Muslim Youth Leagues are on the front lines of countering the jihadist worldview, taking a stand and declaring war on jihad and its misrepresentations of Islam. Enable Local Solutions for Local Problems This should be accomplished through unified government action that involves all the United States' instruments of national power including diplomacy, information sharing, military action where necessary, and economic stimulus as needed. The specific issue with efforts like these, is that they cannot be accomplished during what is perceived by locals as a military occupation. This was proven true in Afghanistan and later in Iraq. Despite massive efforts to rebuild infrastructure, aid in agricultural processes, build schools, and organize community projects, the United States and its allies were still viewed as pushing Western values and democracy on nations through military occupation. As much as possible, we must limit our military presence in areas that are ripe for developing a jihadist movement, or in ones that are recovering. I have seen firsthand that government efforts against jihadist organizations or at-risk communities have often been fragmented, poorly staffed, and uncoordinated. Venhaus (2010) suggests the creation of an agency that is staffed, trained, funded, enabled, and equipped for strategic communications, calling it the United States Strategic Communications Agency. An 25 agency like this could ensure that a comprehensive national communications strategy is developed and achieved, with a focus on enabling local community efforts to counter the jihadist narrative. By promoting social outreach, religious education, and community programs, this agency could bolster the efforts of community leaders and stifle jihadist aims in their areas. Support Religious Education and Reintegration Reintegration programs in Saudi Arabia, Indonesia, Singapore and elsewhere have successfully rehabilitated former jihadists through religious education (Venhaus, 2010). Countering the apocalyptic world view of jihadist groups like al-Qaeda and the Islamic State requires local religious leaders who understand their community's issues to band together and refute the extremist narrative. Through careful, patient, and individually-tailored instruction, Muslim religious leaders can invalidate each and every one of the extremists' claims. Individuals who turn to jihad are often seeking this type of direction, they just find it in the wrong places. Counter Threats with Tailored Military Force Packages Continued themes among the military failures in counterinsurgency and counterterrorism operations during the early years of the Global War on Terrorism are indiscriminate use of force, lack of cultural understanding, and hyper-focus on tactical gains while failing at the strategic level. US government nation-building efforts on the backs of the military cost our country trillions of dollars, thousands of lives, and years of frustration, bogged-down in an endless quagmire of misunderstanding. US Army Special Forces are selected, trained, equipped, and enabled to clandestinely handle complex problem sets in denied or politically-sensitive environments. Each Special Forces Group is regionally-aligned, with Operational Detachments developing deep cultural understanding through Area Studies and continuous relationship-building with regional state and 26 non-state actors. Special Forces operators understand the complex cultural and security situations in their areas of responsibility and have the language capability and strategic understanding to operate with complete independence of outside support. Frankly, if given the authority and autonomy to do their jobs, Special Forces can coerce, disrupt, or overthrow jihadist organizations unilaterally, or train, advise, and equip foreign security forces to accomplish this task on their own. This can all be done independent of a large, slow, and expensive conventional military occupation. Organizations like al-Qaeda must be kept in a state of constant fear and uncertainty. US Special Operations Forces are uniquely suited to this task. Through structured, rapid application of military force, SOF can find, fix, and finish intended targets with surgical precision. This has proven true in the capture of Saddam Hussein and the elimination of Osama bin Laden and Abu Bakr al-Baghdadi, among numerous other targets throughout the Global War on Terrorism. Continuing to deny safe havens through short, precise applications of combat power is crucial and does not rely on a conventional military occupation of the target area. Operations such as these, characterized by discriminate use of force and strategic impact, should be the main avenue for denying the relative safety, security, and freedom of maneuver of jihadist organizations. 27 References British Broadcasting Corporation (2017, June 4). Reality check: What is the prevent strategy? Reality Check. https://www.bbc.com/news/election-2017-40151991. Creswell, R., & Haykel, B. (2015, June 1). Battle lines: Want to understand the jihadis? Read their poetry. The New Yorker. https://www.newyorker.com/magazine/2015/06/08/battle-lines-jihad-creswell-and-haykel. Dearden, L. (2015, March 21). Young British Muslims declare own jihad against ISIS and other terrorists who 'hijack' Islam. Independent. https://www.independent.co.uk/news/uk/home-news/young-british-muslims-declare-own-jihad-against-isis-and-other-terrorists-who-hijack-islam-10146534.html. Dempsey, M. (2015). The national military strategy of the United States of America 2015: The United States military's contribution to national security. The Joint Staff. https://www.jcs.mil/Portals/36/Documents/Publications/UNCLASS_2018_National_Military_Strategy_Description.pdf. Gall, C. (2020, January 31). From armed struggle to peaceful protest, a road still to travel: A veteran of the Afghan jihad working for nonviolent change in Algeria. The New York Times. https://www.nytimes.com/2020/01/31/world/middleeast/from-armed-struggle-to-peaceful-protest-a-road-still-to-travel.html. Gorka, S. L. (2016). Defeating jihad: The winnable war. Regnery Publishing. Kilcullen, D. J. (2010). Counterinsurgency. Oxford University Press. Nilsson, M. (2019, 18 June) Motivations for jihad and cognitive dissonance: A qualitative analysis of former Swedish jihadists. Studies in Conflict and Terrorism. https://doi.org/10.1080/1057610X.2019.1626091. 28 Porch, D. (2013). Counterinsurgency: Exposing the myths of the new way of war. Cambridge University Press. Qur'an (M. Ali, Trans.; 7th ed.) (2015). Islam International Publications. (Original work published ca. 1537). Venhaus, J. (2010). Why youth join al-Qaeda. Special Report, 236(1), 1-12. https://www.usip. org/sites/default/files/SR236Venhaus.pdf.
Most post-modern societies are being challenged by a widening gap that divides their populations by the classic cleavages of age, class, region and religion. Exacerbated by the forces of globalization and the immediacy of technology, they result in constant clashes that cause an exponential increase in social tensions and insecurity. Even if the Norwegian killer was insane and can not be used as example, he was still a member of the dominant culture failing to accommodate to post-modern circumstances. In the United States this gap is vividly evident in the current debt ceiling debate, which is only a symptom of much serious divisions that threaten the country's social unity and political future.A brief look at recent headlines in the United States can give outsiders and idea of the country's social and political environment.On Sunday July 24th, a new law approving gay marriage came into effect in New York, making it the sixth and largest state in the nation (plus the District of Columbia) to have legalized same-sex marriage. In Manhattan, people celebrated on Fifth Avenue, singing and dancing to the music and well-suited lyrics of New York, New York ("If we can make it here, we'll make it anywhere…"). On July 0th, Republican candidates Michelle Bachman and Rick Santoro a "Marriage Vow" swearing fidelity to their spouses, promising they would "vigorously oppose any redefinition of marriage" and would take steps to amend welfare legislation that did not reinforce conventional marriage. This is only a sample of the extreme polarization the country is facing both economically and socially. It is a critical moment in United States history, one that may require a deep reflection on the basic principles the nation was founded upon and a renewal of the social compact.Prodded by the Tea Party leaders, who presently wield an amount of power disproportionate to their numbers, Republican candidates have been signing pledges on an array of different topics in order to prove their conservative credentials. Both Michelle Bachman and Mitt Romney also signed a no-new-taxes pledge, together with a "cut, cap and balance pledge" to amend the Constitution to require a balanced budget and congressional super majorities to raise taxes. These two pledges, albeit non-enforceable and thus largely symbolic, are now the single most important obstacle to reach a deal in Congress about balancing the budget and avoiding default on the national debt. Tea Party Nation leader Judson Phillips has threatened to recruit candidates to mount primary challenges against any GOP member that votes for a compromise on the debt ceiling that involves any type of revenue increases to balance the budget. The GOP Congressional leadership has been hijacked by intransigent ideologues, represented in the House by 87 freshmen with disproportionate power over the more established professional politicians who understand that democratic governance requires give and take, and that politics in a pluralistic society is the art of the achievable.This country was founded on the premise of compromise, negotiation and cooperation, as it is evident from the history of the Constitution and the layers of governmental power devised mainly to counterbalance one another: states versus federal, legislative versus executive, Senate v. House, and an independent judiciary. It was clear even then, that solutions in what promised to be a huge, diverse society with deep regional and religious cleavages would require compromise. But today, in the "worst Congress ever" as Norman Ornstein calls it in his recent article in Foreign Policy, compromise is a bad word. The House is controlled by a GOP freshmen class that owes its seats to Tea Party ideologues and is refusing to raise the debt ceiling even as President Obama has agreed to cuts in spending that include cuts in entitlements, in exchange for ending subsidies on ethanol and other corporate subsidies (he has even given up on the expiration of the Bush era tax cuts he had included in his first proposal). This package that would represent over 3 trillion dollars in cuts from the federal budget, including reductions in Medicare and other social programs, would have allowed the debt ceiling to be raised so that the US could avoid defaulting on its debt by August 2nd. It was on the table last week and close to being signed on by House Speaker John Boehner but he refused it at the last minute because of pressure from his own caucus. The Tea Party is pushing professional legislators toward the abyss, and with them, the whole country. The Tea Party is a social movement that was born out of frustration and disappointment with government spending over the last twelve years. President George W. Bush inherited a budget surplus from the Clinton-Gingrich years. But that surplus quickly vanished as Bush proposed and got passed serious tax cuts on the wealthy and then embarked on two wars that are still going on today. In response, a large coalition of Independents, Republicans and a few former Democrats formed a protest movement that defines itself for what it is against: big government, big media, big banks, unsustainable deficits and intrusive federal regulation. In spite of some evident intrinsic contradictions in their philosophy (for example some the new regulations they so vehemently oppose such as the Dodd-Frank legislation are meant to constrain the actions of "big banks" they so strongly abhor), the Tea Party has been very successful in focusing the public's attention on the federal budget deficit and on the federal debt that has ballooned in the last two decades. Those are its core concerns, together with a deep-seated contempt for and rejection of, everything the well-educated elites are for the most in favor of: environmental sustainability, a foreign policy based on multilateralism, gay rights and immigration reform legislation that recognizes the realities of the estimated twelve million undocumented workers in the country. After two months of wrangling, neither side has managed to get what it wanted, the US credit rating is about to be downgraded (with the subsequent increase in interest rates and damaging effects on an already slow economy) and the vitriolic Washington environment is alienating people on the Right and on the Left. Pressured by the Tea Partiers and their anti-tax obsession, Republicans have refused to compromise to avoid a default, and in so doing they are sabotaging their own chances for 2012. Most Americans are appalled at the GOP's refusal to endorse Obama's proposal that would cut the deficit by $3.7 trillion through a mix of spending cuts, entitlement reform and ending some corporate subsidies and tax deductions. In so doing, the GOP is alienating independent voters that want to avoid default and are ready for a deal. A new political center of gravity is forming. The number of registered voters that identify themselves as Independent is growing (40% in latest poll), while the numbers of Republicans and Democrats are sinking and there is a new online movement from the grassroots to form a third party.Paradoxically, out of all this Byzantine intrigue in the hallways of Congress, and given the outcome of no deal announced on Monday night, President Obama may come out as the winner. To the dismay of his most progressive base, Obama, intent on finding some common ground with the opposition has shifted to the center-right of the political spectrum on his proposals, daring to sacrifice some cuts on entitlements in exchange for revenue increases, only to see them rejected by the Republicans. He is close to winning a stand-alone debt ceiling increase while having proven to be the only reasonable adult in this struggle. This would gain him the support of many independents and help him avoid a confrontation within his own party. It would also allow him to focus on unemployment, the real immediate crisis that most directly impacts people's lives. However, Democrats in the House and Senate are afraid that concessions on reducing some Medicare benefits, for example, or postponing the eligibility age, would ruin the clarity of their message to seniors during the election. Conversely, Tea Partiers see a compromise involving any sort of revenue increases by the government, even non-tax measures such as ending corporate subsidies, as a betrayal of their principles. The Tea Partiers have brought into focus the spending crisis that has been growing unchecked for a long time, and one the country cannot obviously tax its way out of. Some facts cannot be denied: debt is the result of spending not backed by revenue. Total government spending at all levels has risen to 37% of the GDP today from 27% in 1960. It could reach 50% by 2038. The debt-to-GDP ratio has reached 100% today, from 42% in 1980. The big moral struggle is still ahead. There is no question that the government is spending too much, but the real debate is about priorities and the philosophies that underlie those priorities. The President has recognized that the budget deficit is important to voters, most of which have come to the conclusion that since the stimulus spending did not solve the problem of unemployment, deficit reduction appears to be a better way to improve the economy than investing in education, infrastructure and new energy technologies. Obama must acknowledge this, and make it part of his discourse.But the President must also continue to make a case for the common good ("there are things we can still do together", he said in his last speech), the social safety net and America's future. He can do this by personalizing the budget battles the way Clinton did. Are budget battles about choices or necessities? Why give more tax cuts to the wealthy if their wealth has grown through the recession while the rest saw their wealth diminish? Why subsidize corporate agriculture and ethanol production? Social programs like Medicare serve all Americans, why focus on cutting it while giving a pass to the upper income- and- wealth echelon? General elections are won from the center. Strong strident advocates make for weak candidates. Undoubtedly, the 2012 election will be about money, about fiscal discipline, but it will also be about a more equal distribution, and it will require strong leadership from the two respective philosophical corners to come to a consensus. That is why the Republican establishment is so worried about the lack of gravitas in their field of candidates. That is why some yearn for budget whiz Paul Ryan, or Governor Chris Christie or Rick Perry….or anybody really, that looks and sounds as if he can take on Obama in the intricacies of the budget, the debt ceiling, and social programs reform. That may also be why Jeb Bush was asked on Fox News about his intentions to run for President again two days ago. This time his response was more nuanced: he said that while he doesn't anticipate it, he hasn't ruled it out ("but, he added, "I haven't ruled out being in Dancing with the Stars, either").In the meantime, the Wall Street Journal today announced that, based on the Pew Research Center tabulations of SIPP and Census date, the wealth gap between America's whites and its two largest minorities, Blacks and Hispanics, has widened to unprecedented levels due to the housing crisis and the Great Recession. Alan Greenspan, former President of the Federal Reserve has said repeatedly that the wealth gap that has grown consistently for the last decade is a threat not only to our country but to capitalism itself. Poverty and unemployment are a combustive mix: if fiscal responsibility ends up being based on the back of the poor, social conflict will erupt. It is unconscionable, for example, to think that hedge fund managers pay significantly less taxes than their secretaries.Some Republicans want to abolish every piece of social legislation and re-litigate every progressive judicial decision since the New Deal. As part of pledge game, Michelle Bachman and four other candidates also signed the "Susan B. Anthony pledge "promising to appoint abortion opponents to their cabinets and to deny all funding for Planned Parenthood when they become presidents. The bizarre "Marriage Vow "pledge signed by Bachmann and Santoro not only opposes same-sex marriage and includes a personal promise to be faithful to their spouses, but (most peculiarly yet redundantly) it also rejects Sharia Law (which, by the way, like Bachman, also opposes gay marriage and female adultery, which it punishes by death!)The only candidate that has refused to sign any pledge is Jon Huntsman, who understands the perils of siding too closely with the rebellious Tea Party. Even if some of its main points have successfully brought into focus the deficit issue, the Tea Party is still supported by a minority and resented by most Republicans. Its anti-technocratic, anti-Washington message has resonance, but it may have pushed the GOP too far into a corner. Its message is also becoming blurred when it steps into the social arena: its racist and homophobic overtones do not reflect the spirit of the times and are offensive to the "millenials", the youngest generation of voters born in the 80s and 90s, which Republicans still hope to attract in 2012. Social movements are major vehicles of participation and can re-energize a worn out party. They reflect the spirit of the times, often in an extremist way that is what gives them prominence: their passion for the cause, their original approach, are all important, but their message has to resonate with the public if they are to succeed. They emerge, coalesce, grow and achieve some successes. However, once their main point is made, three things can happen: they can become a party, their main ideas can be incorporated into mainstream politics, or they dissipate and be quickly forgotten. The Tea Party brought into focus the issue of fiscal responsibility, it infused conservatism with new energy and found a natural home in the Republican Party, which had become profligate, and will have to prove from now on that it is sincere about austerity. Its impact is undeniable: it has also attracted Independents and in so doing, has per force moved the Democratic Party to the center-right. Mimicking the "big tent" approach of Republicans, the Tea Party has lately been focusing strategically on fiscal responsibility, limited government and free markets and its main groups have avoided divisive social issues when speaking to the general public. But their demands of ideological purity from their candidates, their emphasis on returning to the strict meaning of the Constitution and the values of the Founding Father, their defense of states rights and gun rights, belie their claims of inclusiveness for all Americans; in its coded language, its contempt for immigrants and its not-so- veiled racism, one senses a strongly reactionary sentiment bordering on uncontainable fanaticism which is completely out of step with most Americans and which will make it very difficult to widen its appeal beyond what it has already achieved.To paraphrase deceased Republican leader Barry Goldwater, the Tea Party's aim isnot to streamline government or make it more efficient, but to get rid of every piece of social legislation and economic regulation passed since the New Deal. Their purpose is not to share the burden of the weakest members of society, nor to educate their children so they can have equality of opportunity, but to defend the individual freedoms of those who can stand on their own. In sum, they are extremists for whom tolerance and moderation are vices, not virtues, and therefore they have no place in a democracy.Senior Lecturer, Department of Political Science and Geography Director, ODU Model United Nations Program Old Dominion University, Norfolk, Virginia
La presente ricerca ha avuto ad oggetto l'analisi della criminalità culturale di matrice immigratoria nel contesto europeo contemporaneo. Tradizionalmente con il termine reato culturalmente orientato o motivato si intende quel comportamento realizzato dal membro di una cultura minoritaria che è considerato reato dall'ordinamento giuridico della cultura dominante, ma che viene accettato, condonato, o addirittura incoraggiato all'interno del gruppo culturale del soggetto agente. Dedicare la ricerca esclusivamente alla criminalità culturale di matrice immigratoria significa restringere il campo dell'analisi ai reati culturali commessi da immigrati, escludendo i reati culturali commessi da minoranze autoctone. Esulano, tra l'altro, dall'analisi i reati riconducibili all'immigrazione clandestina e le forme di terrorismo transnazionale di matrice ideologica. Il particolare tipo di reato culturale di cui si è occupata la presente ricerca può dunque essere definito come il comportamento che l'immigrato pone in essere in quanto normale, approvato, o incoraggiato dalla propria cultura e che, invece, è considerato reato nello Stato di residenza. Alla nozione di reato culturale e di cultural defence, nonché alla delimitazione dell'ambito di indagine è dedicato il primo capitolo della tesi, nell'ambito del quale vengono spiegate le difficoltà che si incontrano nel definire il concetto di cultura e di pratica culturale. La ricerca è volta a valutare la possibile rilevanza penale da riconoscere al condizionamento esercitato sul reo dall'appartenenza a una determinata cultura, ossia al c.d. fattore culturale. La definizione di reato culturale è tale da comprendere situazioni molto diverse tra loro, rispetto alle quali è necessario trovare un equilibrio tra tutela dei diritti fondamentali e diritto – o, meglio, diritti – alla specificità. Vengono alla mente pratiche riconducibili alle tradizioni di determinati gruppi etnici, quali la mutilazione degli organi genitali femminili, lo stupro che precede il matrimonio, l'impiego di minori nell'accattonaggio, o i matrimoni poligamici. Con ogni evidenza, si tratta di comportamenti che – ammesso e non concesso che siano (ancora) legittimamente praticati nei Paesi di provenienza dell'immigrato – rappresentano un problema nel momento in cui vengono posti in essere in uno Stato ospitante che ne riconosce la rilevanza penale. I flussi migratori che negli anni hanno accompagnato il processo di integrazione europea ed internazionale hanno messo in contatto persone portatrici di tradizioni culturali estremamente distanti tra loro, facendo della c.d. criminalità culturale uno dei temi più complessi, discussi e controversi del panorama giuridico contemporaneo. Dal punto di vista comunitario, tra l'altro, la nascita dell'area Schengen e il progressivo enlargement europeo hanno incrementato il fenomeno migratorio, imponendo anche a Paesi che non avevano vissuto in passato esperienze immigratorie di confrontarsi con le sfide del multiculturalismo. Spesso si pensa all'immigrazione e alla società multiculturale come una sfida per il diritto penale statale. L'area penale è, infatti, la più resistente alla sottrazione della sovranità che il processo di integrazione europea ed internazionale comporta perché rappresenta uno degli ambiti in cui maggiormente si riflette l'identità costituzionale degli Stati. La norma penale è una delle più alte manifestazioni dei valori prevalenti in una determinata area culturale. Da un lato, questo significa che l'ordinamento nazionale si riserva gelosamente la potestà di decidere quali comportamenti costituiscono reato all'interno del proprio territorio. Dall'altro lato, proprio per questo suo essere espressione della cultura di appartenenza di un determinato soggetto, la norma penale fa parte del bagaglio del migrante: l'individuo percepisce come reato ciò che per la propria cultura è reato e potrebbe non comprendere, e magari neanche percepire, le fattispecie vigenti nel territorio in cui emigra. Sullo sfondo dei reati culturali vi è una forma di conflitto culturale tra Paese ospitante e individuo ospite, che porta con sé la necessità di stabilire come devono essere giudicate le condotte poste in essere da chi appartiene a culture diverse da quella ritenuta dominante. Nell'ambito della ricerca che ha portato alla presente tesi è stato analizzato il trattamento dei culturally motivated crimes con particolare riferimento al sistema italiano e a quello del Regno Unito. L'Italia, alla quale è dedicato il secondo capitolo della tesi, storicamente è stata il punto di partenza dei migranti; soltanto nell'ultimo trentennio è divenuta una meta per gli immigrati e si è dovuta confrontare con la criminalità culturale di matrice immigratoria. Il modello italiano di gestione della diversità culturale, oltre ad essere particolarmente giovane, è considerato di stampo assimilazionista. La legislazione italiana non chiarisce la rilevanza penale da attribuire al fattore culturale, né tantomeno codifica una qualche forma di cultural defence. La strategia che, soprattutto negli ultimi anni, il nostro legislatore penale sembra portare avanti è quella di introdurre alcuni singoli reati culturalmente orientati, spesso con interventi caratterizzati da una decisa reazione sanzionatoria. In questo senso dal punto di vista legislativo vengono in particolare in rilievo due recenti interventi normativi: la legge n. 7 del 2006, con la quale è stato introdotto il delitto di mutilazioni genitali femminili e la legge n. 94 del 2009, con la quale è stato innalzata a delitto la contravvenzione di impiego dei minori nell'accattonaggio. Dal punto di vista giurisprudenziale in Italia si registra una mancanza di coerenza nelle decisioni che hanno ad oggetto i reati culturali. Per quanto attiene il sistema italiano vengono inoltre analizzate le sentenze pronunciate da tribunali esteri nell'ambito di procedimenti che hanno riguardato italiani accusati di reati culturalmente motivati. Si tratta di un'ottica molto interessante perché permette di superare l'atteggiamento paternalista mascherato da tolleranza che spesso accompagna il tema della diversità culturale. Il Regno Unito è stato scelto come secondo modello di riferimento e gli viene dedicato il terzo capitolo della tesi. Oltre ad aver vissuto un'esperienza immigratoria precedente rispetto all'Italia, la Gran Bretagna nel contesto europeo è considerata portatrice del modello c.d. multiculturalista di gestione della diversità culturale, che si contrappone al modello c.d. assimilazionista, al quale è invece riconducibile il sistema italiano. L'approccio multiculturalista è ispirato da una logica di uguaglianza sostanziale e tradizionalmente si caratterizza per il riconoscimento delle diversità culturali e l'elaborazione di politiche volte alla loro tutela. Nel Regno Unito l'appartenenza a una determinata minoranza culturale giustifica un diverso trattamento giuridico: si pensi al Road Traffic Act e all'Employment Act, che esonerano gli indiani sikh dall'uso del casco nei cantieri di lavoro e in moto, consentendo loro di indossare il tradizionale turbante. Espressione del multiculturalismo all'inglese sono anche gli Sharia Councils, pseudo-Corti formate da membri autorevoli della comunità islamica alle quali può rivolgersi la popolazione britannica musulmana affinché determinate controversie vengano risolte in applicazione della shari'a, la legge islamica. Lo studio degli Sharia Councils è stato una parte fondamentale del percorso di ricerca, svolto anche grazie alla partecipazione all'attività del Council di Londra. Questi organismi operano nell'alveo dell'Arbitration Act e sono oggi al centro di un fervente dibattito per due principali motivi. Prima di tutto nel Regno Unito si discute molto di parallel legal systems, ossia della possibilità di istituire per soggetti culturalmente diversi degli ordinamenti paralleli. Alcuni Autori ritengono che gli Sharia Councils esercitino una vera e propria competenza di carattere giurisdizionale. Assumendo questa tesi - invero minoritaria - il multiculturalismo all'inglese raggiungerebbe il cuore dell'ordinamento, all'interno del quale creerebbe una vera e propria spaccatura: ogni cittadino avrebbe la "sua" legge e il "suo" tribunale. Un altro problema fondamentale è quello dell'esercizio da parte dei Councils di una competenza di carattere penale: l'accusa rivolta a queste istituzioni è, infatti, quella di essersi arrogate una competenza in tema di violenza domestica forzando le maglie delle decisioni in tema di divorzio. Accanto all'analisi dedicata al sistema italiano e a quello inglese, per la ricerca si sono rivelate fondamentali anche le esperienze di Francia, Stati Uniti e Canada. Il sistema francese è considerato nel panorama europeo il principale modello assimilazionista: a questo proposito si parla di processo di francesizzazione degli immigrati, o anche cittadinizzazione senza integrazione. Gli Stati Uniti, spesso considerati la società multiculturale per eccellenza, sono la patria del dibattito sulla cultural defence, la strategia difensiva fondata sul fattore culturale come causa di giustificazione o come causa di diminuzione della pena. Il Canada, infine, è il portatore nel contesto internazionale del modello multiculturalista inglese: il multiculturalismo è espressamente previsto come principio nella Carta dei diritti e delle libertà, a partire dall'inizio degli anni novanta è stato reintrodotto per gli Inuit il circle sentencing, grazie al quale le decisioni, anche in materia penale, vengono adottate da una sorta di collegio composto dal giudice e da membri delle comunità interessate. Tra l'altro, è stata la Corte costituzionale canadese a formalizzare per la prima volta il c.d. test culturale, negli anni novanta. L'analisi del modello italiano, giovane e di stampo assimilazionista, e di quello multiculturalista inglese consente, anche grazie ai continui riferimenti ai sistemi adottati negli Stati Uniti, in Canada e in Francia, di assumere un punto di vista più generale sul trattamento dei reati culturali. I processi che riguardano vicende di criminalità culturale testimoniano spesso una difficoltà di integrazione degli immigrati che non è solo culturale, ma prima di tutto sociale. Sotto questo punto di vista ciò che accade nelle aule dei tribunali diventa il metro di valutazione della politica legislativa statale in tema di immigrazione. Obiettivo della ricerca è stato quello di identificare gli strumenti per gestire la criminalità culturale, individuando le strade che si possono concretamente percorrere per superare le tensioni tra società multiculturale e sistema penale, alla ricerca di un equilibrio tra tutela dei diritti fondamentali e diritti alla diversità che non metta in discussione principi cardine dell'ordinamento penale quali quello di eguaglianza e quello di proporzionalità della pena. Preso atto della complessità del problema, la prima conclusione cui si giunge all'esito della ricerca è l'impossibilità di conferire una rilevanza penale generale al fattore culturale. Non è possibile introdurre nella parte generale del Codice penale una causa di giustificazione culturale, così come non è possibile codificare una circostanza attraverso la quale dare un rilievo sanzionatorio predefinito e generale alla componente culturale che porta il reo a delinquere. Più volte tra le pagine del lavoro si sottolinea che rientrano nella nozione di reato culturale condotte che non sono neanche lontanamente paragonabili dal punto di vista del disvalore sociale che le connota e rispetto alle quali non è possibile fare un discorso di carattere generale. Così come non è possibile lavorare sulla parte generale del Codice penale, anche la scelta di introdurre fattispecie di reato create ad hoc per incriminare specifiche pratiche culturali non è condivisibile. Ed infatti, da un lato identificare e tipizzare una pratica culturale è spesso realmente difficile – e nel codice penale non c'è spazio per l'indeterminatezza – e dall'altro le esperienze italiana e inglese rivelano che l'operazione è alquanto inutile. A livello legislativo l'unica strada valutabile sembra essere quella di prevedere delle specifiche cause di non punibilità che permettano di dare una rilevanza – in maniera controllata – al fattore culturale in determinate ipotesi. Questa opzione consente di prendere in considerazione determinate pratiche culturali e di cucire su di esse la non punibilità, senza che questo implichi una scelta ordinamentale di carattere generale. Sembra, tuttavia, che sia una strada difficilmente praticabile: tra l'altro, un tema delicato come quello della criminalità culturale potrebbe non trovare facilmente una maggioranza parlamentare tale da consentire di legiferare e, comunque, ciò potrebbe avvenire in tempi decisamente lunghi. Ebbene, allo stato la chiave della questione è nel trattamento delle singole e concrete vicende di criminalità culturale e, dunque, nel ruolo del giudice. Anche in questo caso sorgono dei problemi: basti pensare che nel momento in cui il legislatore penale si astiene dal prevedere in via generale una forma di cultural defence, il fattore culturale potrebbe anche essere preso in considerazione contra reum, ad esempio a fini deterrenti, per chiarire inequivocabilmente l'intollerabilità di un determinato comportamento, o per prevenire una vendetta da parte del gruppo di appartenenza culturale della vittima. Il dato è preoccupante perché, come sottolineano gli Autori che si occupano di criminalità culturale, in presenza di un reato culturalmente orientato o motivato il grado di rimproverabilità dell'autore si attenua in conseguenza di una minore esigibilità della conformazione al precetto penale. Per arginare il rischio che il fattore culturale venga preso in considerazione per aggravare il giudizio di responsabilità del reo è dunque indispensabile sensibilizzare i giudici e munirli degli strumenti adatti per gestire la diversità culturale. In tale ottica la ricerca presenta l'analisi di alcuni strumenti che vengono utilizzati nei Paesi analizzati e dai quali è possibile prendere spunto: vengono così in rilievo l'Equal Treatment Bench Book inglese, il circle sentencing canadese, e la possibilità, sul modello francese, di integrare l'organo chiamato a giudicare un reato culturale. Di queste strade quella concretamente più praticabile è l'Equal Treatment Bench Book, un vademecum destinato agli operatori giudiziari nell'ambito del quale si rinvengono linee guida per la gestione pratica delle diversità culturali. Si tratta di un prodotto non immediatamente importabile, poiché non sarebbe sufficiente tradurlo per applicarlo, ad esempio, in Italia. È dunque necessario che i singoli Paesi adottino il proprio Bench Book; in quest'ottica la ricerca presenta alcune indicazioni da prendere in considerazione sia per quanto attiene chi potrebbe essere chiamato a scrivere il vademecum, sia per quanto attiene il contenuto del documento. In conclusione va richiamata una riflessione di carattere più generale: il modo corretto di affrontare la criminalità culturale di matrice immigratoria si basa sulla consapevolezza che prevenire è meglio che reprimere. Sicuramente, l'attenzione al ruolo del giudice e agli strumenti di concreta gestione della diversità culturale sono molto importanti, ma lo sono ancor di più le politiche per l'integrazione della società multiculturale, nella quale si assiste a un processo di scambio e di fusione culturale che si rivela il momento privilegiato per determinare l'equilibrio tra valori indiscutibili e diritti alla diversità. ; The research focuses on culturally motivated crimes related to migratory flows in the European area. A cultural offence is defined as an act by a member of a minority culture, which is considered an offence by the legal system of the dominant culture; that same act is nevertheless, within the cultural group of the offender, condoned, accepted as normal behaviour and approved or even endorsed and promoted in the given situation. The specific focus on immigration means that the research does not analyse crimes committed by native minorities. Moreover, crimes related to illegal immigration and transnational terrorism are not part of the dissertation. Thus, the specific type of cultural offences analysed in the research can be defined as the immigrant's behaviours that is normal, approved or promoted in his/her culture, but is considered offences in the State where he/she lives. The first chapter of the thesis is devoted to defining the notion of cultural crimes and cultural defence, and to outline the research analysis. This chapter acknowledges the difficulties encountered in defining the concepts of culture and cultural custom. The purpose of the research is to evaluate to what extent the fact that the defendant based his/her actions on a cultural norm can be taken into account in determining his/her responsibility within the criminal legal system of the country where the action takes place. Many different behaviours can be linked to cultural crimes and in all these circumstances there is the need to find a balance between fundamental rights protected by the domestic legal system and the specificity rights of minority groups. Consider the case of female genital mutilations, rape before wedding, or polygamy. These acts – even if they are (still) permitted in the country of the immigrant – may be considered offences in the country where the immigrant lives. Due to the immigration phenomenon related to the process of European and international integration, people coming from really different cultural backgrounds live together and nowadays the cultural crime rate has become one of the most problematic and debated legal issues. Furthermore with the gradual European enlargement more and more countries have had to face with problems related to multiculturalism. Immigration and multicultural society are often considered as a challenge for the criminal law, which is one of the more resistant areas of the whole legal system and opposes the process of European and international integration. This happens because the criminal law mirrors the essential nature of a country through the choice of the acts that are considered offences in the national territory. This choice is deeply influenced by the cultural background of the country and the criminal law is part of the cultural baggage of the immigrant. When people immigrate they bring with themselves the awareness that a behaviour is considered an offence in their country and they may not know or understand what is considered an offence in the country where they decide to live. Culturally motivated crimes stem from a conflict between the immigrant and the legal system of the country where he/she decides to live, between a cultural norm and a legal standard. With this regard, Van Broeck noted that the cultural offence has to be caused directly by the fact that the minority group the offender is a member of uses a different set of moral norms when dealing with the situation in which the offender was placed when he committed the offence: the conflict of divergent legal cultures has to be the direct cause of the offence. The research analyses how legislator and judges deal with cultural offences in Italy (Chapter II) and in the United Kingdom (Chapter III). For a long time Italy has been the starting point for immigrants and only in the last thirty years it has become their destination. For this reason the problem of determining the relevance of the cultural factor on the structure of an offence is more recent in Italy than in the United Kingdom, where the multicultural society is the result of the long story of the colonialism and the Commonwealth of Nations. Furthermore, the Italian system of handling cultural diversity is basically considered an example of assimilationism while the English one is considered an example of multiculturalism. This means that in the United Kingdom, more than in Italy, the legislation aims at preserving minority customs. In addition to the analysis of the Italian and the English systems, also the experience of France, of the United States and of Canada has been essential for the research. In the European context the French system is considered the best example of assimilationism. The law banning the wearing of a niqab or full-face veil in public is the clearest instance of this approach to different cultures which is usually regarded as gallicization of immigrants. The United States, often considered the multicultural society par excellence, are the birthplace of the debate about the cultural defence. In the international context Canada is considered an example of a multicultural system: multiculturalism is mentioned in the Canadian Charter of Rights and Freedoms of 1982 and since the 90's the circle sentencing can be used to solve disputes in the Inuit group with the participation of members of the community in addition to the judges. Furthermore, in the same period the Canadian court formalized for the first time the distinctive cultural test. The comparison between the Italian and the English systems in handling cultural differences deriving from immigration and all the references to the American, Canadian and French systems allow the research to adopt a more general point of view in analysing cultural crimes. Trials concerning culturally motivated crimes often give evidence of a difficulty in immigrants' integration; an issue that is not only a cultural problem, but primarily a social dilemma. From this point of view what happens in courtrooms becomes a device to evaluate a state immigration policy. The purpose of the research is to identify useful tools to manage cultural offences, finding a balance between victims' fundamental rights and the cultural specificity of a minority group. The first conclusion reached in the dissertation regards the impossibility to provide a general relevance to the cultural factor in the criminal system, so that it is not possible to introduce a cultural defence. Many different behaviours can be considered cultural offences and it is not possible to treat as homogeneous a broad range of acts. At the same time, also the introduction of type of offences to criminalize a specific cultural practice is not the right way to solve the problem of the cultural factor in the structure of the offence. First of all there would be many problems in identifying a cultural practice, because it is really hard to recognize which behaviour can be related to the cultural background of the minority group of the defendant. Moreover, as can be noticed when problems concerning the criminalization of the female genital mutilation in Italy and the United Kingdom are analysed, this way seems almost useless. A good option is to adopt methods which do not impose a penalty to the defendant, taking into account his/her cultural background in certain circumstances. This can be done using the absolute discharge of the English legal system or the category of the cause di non punibilità of the Italian one. In this case the chance not to impose a penalty to an immigrant defendant can be achieved without any consequence on the nature of offence of the behaviour in the legal system of the country where he/she decides to live. In a similar way in the Italian system it could be difficult to find the parliamentary majority to approve a legislation introducing the specific causa di non punibilità. Thus, the more practicable solution concerns the judges' activity. In this case, there is the need to avoid that the cultural factor is used contra reum worsening, for instance, the penalty. This modus operandi would not be fair because in the case of actions determined by a cultural norm commonly accepted by a minority group, the degree of reproach of these behaviours should be alleviated. In order to avoid that the cultural factor could be taken into account contra reum the first thing to do is to sensitize judges to the problems of the criminal law in a multicultural society. With this regard, the research analyses some tools used in the analised systems: in particular, the English Equal Treatment Bench Book, the Canadian system of the circle sentencing and the possibility, as in the French legislation, to integrate the judging body with lay judges in trials concerning cultural offences. The most workable solution is the Equal Treatment Bench Book, a guide for judges, magistrates, and all other judicial office-holders to handle cultural differences in trials. This English vademecum is not immediately importable in other European countries. In fact, it is not enough to translate it to solve the problem of sensitizing judges in so different legal systems. Thus, it is necessary to adopt a document like the English Bench Book in every country where immigration puts cultural offences on the agenda. From this point of view the research gives some hints about the drawing up of this vademecum. In conclusion it is possible to affirm that the correct way to approach cultural offences committed by immigrants is to understand that prevention is better than cure. Surely, it is important to pay attention to the role of judges and to the tools they can use in handling criminal offences. It is even truer that all the policies for the integration of the multicultural society are the most important instrument to determine the balance between fundamental rights and specificity rights of minority groups, that is also the key to handle cultural crimes.
